Bhukau Ram vs State Of Chhattisgarh
2023 Latest Caselaw 254 Chatt

                                -1




                                                                NAFR

            HIGH COURT of CHHATTISGARH, BILASPUR

              Judgment Reserved on 14.09.2022

              Judgment Delivered on 13.01.2023

                      CRA No. 1017 of 2002
  Bhukau Ram aged about 20 years, S/o Amrika alias Baman Caste
  Suryawanshi, R/o Ghutku, P.S.- Sarkanda, District- Bilaspurc (CG)
                                                        ---- Appellant
                             Versus
  State Of Chhattisgarh through Presiding Officer, PS-Sarkanda, Tahsil
  and District-Bilaspur (CG)
                                                     ---- Respondent


     For Appellant     :    Mr. A.R.K. Rao, Advocate
     For Respondent    :    Ms. Abhiyunnati Singh, Panel Lawyer


               S.B.: Hon'ble Shri Parth Prateem Sahu, Judge
                               CAV Judgment

1. Challenge in this appeal is to judgment of conviction and order of

  sentence dated 20th August 2002 passed by learned Sessions Judge,

  Bilaspur (CG) in S.T. No.126 of 2002 whereby the appellant has been

  held guilty of commission of offence punishable under Sections 450

  and 376 of IPC and sentenced him as below:


         Conviction                        Sentence

         u/S 450 of IPC                    RI for 7 years and fine of
                                           Rs.100/-, in default of
                                           payment        of     fine,
                                           additional RI for 1 month

         u/S 376 of IPC                    RI for 7 years and fine of
                                           Rs.100/-, in default of
                                      -2




                                             payment        of     fine,
                                             additional RI for 1 month


2. Facts

relevant for disposal of this appeal are that on 30.12.2001 in

afternoon, prosecutrix was making arrangement to prepare food in

her house. At that relevant point of time, appellant entered into the

house and committed forceful sexual intercourse with her. On the

date of incident, father, mother and grandfather of the prosecutrix

were not present in house and village. Incident was intimated by the

prosecutrix to her aunt who is residing in a separate adjacent house

and thereafter, reported the incident to concerned police station on

11.01.2002, based upon which, FIR was registered against the

appellant for the offence punishable under Sections 376, 450 and

506 of IPC. Police, after completion of investigation, submitted final

report before the Court of competent jurisdiction for offence

punishable under Sections 376, 450 and 506 of IPC. Learned trial

Court, considering the material available in the charge sheet, framed

charges against the appellant for commission of offences under

Sections 450, 506-B and Section 376 of IPC, to which, appellant

denied and he was put to trial.

3. Prosecution, to prove charges levelled against the appellant,

examined as many as eight witnesses namely prosecutrix (PW1),

grand-uncle of prosecutrix (PW2), father of prosecutrix (PW3), Dr.

Sunita Rao (PW4), Dr. N.K. Soni (PW5), aunt of prosecutrix (PW6),

Dr. A. K. Dixit (PW7), Shivprasann Patel (PW8) and exhibited fifteen

documents i.e. written complaint (Ex.P-1), FIR (Ex.P-2), Spot Map

-3

(Ex.P-3), Seizure Memo (Ex.P-4), Consent letter for medical

examination of prosecutrix (Ex.P-5), medical examination report of

prosecutrix (Ex.P-6), Radiology report (Ex.P7), medical examination

report of accused (Ex.P-8), request letter to SDM for permission of

medical examination of the prosecutrix (Ex.P-9), request letter for

providing medical examination report of the prosecutrix (Ex.P10),

letter for medical examination of accused (Ex.P-11), Arrest Memo

(Ex.P-12), request letter for preparing spot map (Ex.P-13), receipt of

FSL report (Ex.P-14), FSL report (Ex.P-15). After conclusion of trial,

learned trial Court, on appreciation of facts and circumstances of the

case, oral and documentary evidence brought on record, held the

charges levelled against the appellant to be proved, convicted and

sentenced him as mentioned in para-1 of this judgment.

4. Mr. ARK Rao, learned counsel for the appellant would submit that

absolutely false case was registered against the appellant. He

contended that as per the case of prosecution, incident is of about

2:00 pm (noon), in front of house of the prosecutrix children were

playing and her uncle's and aunt's house is located adjacent to the

house of prosecutrix. She did not narrate the incident immediately to

her aunt or made scream. FIR was lodged after about 11 days of the

incident, not by the father but grandfather of the prosecutrix, who is

not even the real grandfather. In evidence of prosecutrix, it has come

that father and grandfather of the prosecutrix returned in evening of

the date of incident but even then, they have not lodged any report

immediately to the concerned police station nor convened any village

-4

panchayat meeting, which prima facie shows that allegation levelled

against the appellant is not reliable baseless and the story narrated in

the FIR against the appellant is not reliable. He contended that the

prosecutrix in her Court statement stated her age to be 12 years, but

no documentary evidence has been placed on record by the

prosecution to prove the age of prosecutrix, whereas, as per the

Radiologist report, age of the prosecutrix was in between 15 to 16

years and by adding 2 years margin on either sides, the prosecutrix

was about 18 years of age on the date of incident. He also contended

that doctor did not find any corresponding injury over the person of

prosecutrix and further opined that she could not give any opinion of

recent sexual assault upon the prosecutrix. The evidence of grand-

uncle (PW2) (complainant) is highly improbable and, therefore, he is

not reliable witness. This witness further stated that when he came to

lodge report of the alleged incident, father of the prosecutrix was

present in the house but he did not come to police station to lodge

report against the appellant for alleged commission of rape on his

daughter, which also makes the prosecution story suspicious. He

submits that there are material contradictions and omissions in the

evidence of prosecution witnesses and, hence, learned Court below

erred in convicting appellant for the aforementioned offence

overlooking the entire evidence available on record.

5. Ms. Abhiyunnati Singh, learned counsel for the State opposes the

submissions of learned counsel for the appellant and would submit

that the prosecutrix was a minor girl. On the date of incident, parents

-5

of the prosecutrix was not present in village or house but went to

some other village which is narrated in FIR and in the evidence of

prosecutrix also. Prosecutrix immediately after the incident intimated

to her aunt about the incident, which is corroborated by her aunt

(PW6) in her evidence. For delay in lodging the report, learned trial

Court had considered the evidence of Parasram (PW3), father of

prosecutrix, wherein, he stated that looking to the age of prosecutrix,

after thinking about the pros and cons of the matter, FIR was lodged

and, therefore, in the facts of the case, delay in lodging FIR would not

be fatal to the case of prosecution. To prove the age of prosecutrix,

she was sent for ossification test, Radiologist submitted report (Ex.P-

7) and opined that on the date of incident, age of the prosecutrix was

in between 15-16 years which shows that on the date of incident,

prosecutrix was minor. She contended that prosecutrix stood firm with

the allegation in her Court statement also. In her cross-examination,

she did not deviate from the allegation made in the FIR and stated

before the Court in her examination-in-chief. Hence, the finding of

conviction recorded by learned trial Court does not call for any

interference.

6. I have heard learned counsel for the respective parties and perused

the record of the Court below.

7. FIR is marked as Annexure P-1. In the FIR, allegation against the

appellant is that he entered into the house of prosecutrix, when she

was alone, abused her and committed forceful sexual intercourse

-6

with her. After committing sexual intercourse, she was threatened and

thereafter, appellant ran away from house. It is also mentioned that

after the incident, she immediately informed to her aunt. FIR was

lodged on 11.01.2002 for the incident taken place on 30.12.2001.

Prosecutrix was examined as PW1. In her evidence, she stated that

after the incident, she intimated this fact immediately to her aunt.

PW2, grand-uncle of the prosecutrix stated that he along with Paras

Ram (father of prosecutrix) went to village Nirtu. When they returned

back to their home, they were informed of committing forceful sexual

intercourse by the appellant. PW3, father of the prosecutrix, also

stated that when he returned back, he was informed by the

prosecutrix about the incident. In para-6 of the evidence, he further

stated the reason of lodging report with delay, which reads as under:

"eSa d`".kk dks tkurk gwa A d`".kk ckbZ us Hkh eq>s ?kVuk ds

ckjs esa crk;k Fkk A D;ksfd ,slh ?kVuk gks tkrh gS rks

lkspuk iM+rk gS fd D;k djsa D;k u djsa blh dkj.k ?

kVuk dh fjiksVZ djus esa nsjh gks xbZ A eSaus bl ?kVuk dsa

laca/k esa iapk;r ugha fd;k Fkk A ?kVuk ds igys Qsdwjke

ds vkjksih ds ?kj okyksa ls vPNs laca/k Fks A ?kVuk ds

ckn ls vPNs laca/k ugha gS A ;g xyr gS fd Qsdwjke

vfHk;qDr ds ?kj okyksa ds [ksr dks tcjnLrh [kjhnuk

pkgrk gS vkSj u cspsus ds dkj.k ge yksxksa us >wBh fjiksVZ

dh gS A"

8. Aunt of the prosecutrix was examined as PW6. In her deposition, she

-7

stated that on the date of incident, her father-in-law and brother-in-

law Parasram (father of prosecutrix) went to another village. When

this witness returned back from the work place, she was intimated by

prosecutrix about the incident. She also narrated the incident to her

father-in-law PW2 when he returned back from other village. These

witnesses PW1, PW2, PW3 and PW6 denied the suggestion that

report lodged against the appellant to be false with an intent to grab

the immovable property of accused/appellant family. The prosecutrix

in her statement recorded under Section 161 of Cr.P.C. has stated

about the commission of offence by the appellant and further that she

informed her aunt when she returned from the kothar (work place).

Some contradictions here and there in the evidence of prosecutrix

will not vanish entire case of the prosecution, when in the facts and

circumstances of the case, the manner in which the appellant

committed offence, complaint by prosecutrix immediately to PW6

upon her returning from kothar to her house, statement recorded

under Section 161 of Cr.P.C., and also evidence before Court. There

is no contradiction in the material fact, in evidence of material

witnesses, hence, submission of learned counsel for the appellant

that there is contradictions and omissions in the evidence of PW1

(prosecutrix), in the opinion of this Court, is not acceptable in view of

other evidence available on record.

9. The ground of delay raised by learned counsel for appellant is also

not acceptable in view of the evidence of father of the prosecutrix

(PW3) in para-6, wherein he assigned reason for lodging report with

-8

delay. The reasons assigned for delay in lodging report by PW3

appears to be one of the plausible reason for a father of a teenage

girl not to lodge report immediately and to think over about the steps

to be taken in the facts of the case. Therefore, the ground of delay

raised by learned counsel for the appellants is also not sustainable.

10. Hon'ble Supreme Court in the case of State of H.P. Vs. Gian

Chand 2001 (6) SCC 71, held as under -

"12. Delay in lodging the FIR cannot be used as a

ritualistic formula for doubting the prosecution

case and discarding the same solely on the

ground of delay in lodging the first information

report. Delay has the effect of putting the Court in

its guard to search if any explanation has been

offered for the delay, and if offered, whether it is

satisfactory or not. If the prosecution fails to

satisfactorily explain the delay and there is

possibility of embellishment in prosecution version

on account of such delay, the delay would be fatal

to the prosecution. However, if the delay is

explained to the satisfaction of the court, the delay

cannot by itself be a ground for disbelieving and

discarding the entire prosecution case. In the

present case, PW1 the mother of the prosecutrix

is a widow. The accused is a close relation of

brother of late husband of PW1. PW1 obviously

-9

needed her family members consisting of her in-

laws to accompany her or at least help her in

lodging the first information report at the police

station. The incident having occurred in a village,

the approach of the in-laws of PW1 displayed

rusticity in first calling upon the father of the

accused and complaining to him of what his son

had done. It remained an unpleasant family affair

on the next day of the incident which was tried to

be settled, if it could be, within the walls of family.

That failed. It is thereafter only that the

complainant, the widow woman, left all by herself

and having no male family member willing to

accompany her, proceeded alone to police station.

She was lent moral support by Ruldu Ram, the

village Panch, whereupon the report of the

incident was lodged. The sequence of events soon

following the crime and as described by the

prosecution witnesses sounds quite natural and

provides a satisfactory explanation for the delay. It

was found to be so by the learned Sessions

Judge. The High Court has not looked into the

explanation offered and very superficially recorded

a finding of the delay having remained

unexplained and hence fatal to the prosecution

case. It is common knowledge and also judicially

noted fact that incidents like rape, more so when

-10

the perpetrator of the crime happens to be a

member of the family or related therewith, involve

the honour of the family and therefore there is a

reluctance on the part of the family of the victim to

report the matter to the police and carry the same

to the court. A cool thought may precede lodging

of the FIR. Such are the observations found to

have been made by this Court in State of Punjab

Vs. Gurmit Singh & Ors., (1996) 2 SCC 384 and

also in the case of Harpal Singh (1981) SCC Crl.

208. We are satisfied that the delay in making the

FIR has been satisfactorily explained and

therefore does not cause any dent in the

prosecution case.

11. In the case of State of Rajasthan Vs. N.K. the Accused (2000) 5 SCC 30, it was held as under:-

"15. We may however state 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. In State of Rajasthan

Vs. Narayan AIR 1992 SC 2004 this Court

observed:

-11

"True it is that the complaint was lodged two days later but as stated earlier Indian society being what it is the victims of such a crime ordinarily consult relatives and are hesitant to approach the police since it involves the question of morality and chastity of a married woman. A woman and her relatives have to struggle with several situations before deciding to approach the police...."

12. In the case of State of Punjab Vs. Ramdev Singh (2004) 1 SCC 421, Hon'ble Supreme Court held as under :

"9. Delay in lodging the FIR cannot be used as

a ritualistic formula for doubting the prosecution

case and discarding the same solely on the

ground of delay in lodging the first information

report. Delay has the effect of putting the Court

in its guard to search if any explanation has

been offered for the delay, and if offered,

whether it is satisfactory or not. If the

prosecution fails to satisfactorily explain the

delay and there is possibility of embellishment in

prosecution version on account of such delay,

the same would be fatal to the prosecution.

However, if the delay is explained to the

satisfaction of the Court, same cannot by itself

be a ground for disbelieving and discarding the

entire prosecution version, as done by the High

Court in the present case."

13. Submission of learned counsel for the appellant that doctor did not

find corresponding injury over person of the prosecutrix either

-12

external or over private part is concerned, report was admittedly

lodged after 11 days of incident. Absence of injury on the person of

prosecutrix will not make the case of prosecution suspicious.

14.Hon'ble Supreme Court in case of N.K. the accused (supra), while

considering the defence raised by appellant therein that he was falsely

implicated as there was no injury over person of the prosecutrix, held as

under :-

"18. Absence of injuries on the person of the

prosecutrix has weighed with the High Court for

inferring consent on the part of the prosecutrix. We

are not at all convinced. We have already noticed

that the delay in medical examination of the

prosecutrix was occasioned by the factum of the

lodging of the F.I.R. having been delayed for the

reasons which we have already discussed. The

prosecutrix was in her teens. The perpetrator of the

crime was an able-bodied youth bustling with

energy and determined to fulfill his lust armed with

a knife in his hand and having succeeded in

forcefully removing the victim to a secluded place

where there was none around to help the

prosecutrix in her defence. The injuries which the

prosecutrix suffered or might have suffered in

defending herself and offering resistance to the

accused were abrasions or bruises which would

heal up in ordinary course of nature within 2 to 3

-13

days of the incident. The absence of visible marks

of injuries on the person of the prosecutrix on the

date of her medical examination would not

necessarily mean that she had not suffered any

injuries or that she had offered no resistance at the

time of commission of the crime. Absence of

injuries on the person of the prosecutrix is not

necessarily an evidence of falsity of the allegation

or an evidence of consent on the part of the

prosecutrix. It will all depend on the facts and

circumstances of each case. In Sheikh Zakir,

absence of any injuries on the person of the

prosecutrix, who was the helpless victim of rape,

belonging to a backward community, living in a

remote area not knowing the need of rushing to a

doctor after the occurrence of the incident, was

held not enough for discrediting the statement of

the prosecutrix if the other evidence was

believable. In Balwant Singh this court held that

every resistance need not necessarily be

accompanied by some injury on the body of the

victim; the prosecutrix being a girl of 19/20 years of

age was not in the facts and circumstances of the

case expected to offer such resistance as would

cause injuries to her body. In Karenel Singh the

prosecutrix was made to lie down on a pile of sand.

This court held that absence of marks of external

-14

injuries on the person of the prosecutrix cannot be

adopted as a formula for inferring consent on the

part of the prosecutrix and holding that she was a

willing party to the act of sexual intercourse. It will

all depend on the facts and circumstances of each

case. A Judge of facts shall have to apply common

sense rule while testing the reasonability of the

prosecution case. The prosecutrix on account of

age or infirmity or overpowered by fear or force

may have been incapable of offering any

resistance. She might have sustained injuries but

on account of lapse of time the injuries might have

healed and marks vanished."

15. In the facts of the case where the FIR was lodged with delay which is

explained and taking note of aforementioned decision of Hon'ble

Supreme Court in the case of N.K. the accused (supra), defence

taken by learned counsel for the appellant that absence of injury

shows false implication of appellants is not sustainable.

16. For age, prosecution placed on record, Radiologist's report (Ex.P-7)

and to prove it, examined Dr. N.K. Soni (PW5). Dr. N.K. Soni proved

the report (Ex.P7) and stated that according to report. prosecutrix

was less than 16 years of age. When documentary evidence like

school register, birth certificate or kowari register are not available,

age is to be ascertained scientifically by Radiological test. According

to Modi's Jurisprudence, error of age is two years on either side.

-15

17. Suggestion to prosecution witnesses, of false implication of appellant,

because the grand-uncle of prosecutrix wanted to grab immovable

property of appellant, was denied by them. Only in statement

recorded under Section 313 of Cr.P.C. appellant has taken the said

plea that PW2 wanted to grab their mortgage property but except the

statement under Section 313 of Cr.P.C. no other evidence is brought

on record. Plea taken by the appellant in his defence is a fact where

not, few persons will be aware of transaction of mortgage if any and

not making the payment of loan, the other persons may also become

aware of some dispute if any of property or repayment of loan, which

is absent in this case. Hence the defence taken by appellant of false

implication prima facie is not acceptable.

18. In view of aforementioned facts of the case aforementioned ruling of

Hon'ble Supreme Court, I do not find any good ground to interfere

with the judgment of conviction and sentence awarded by the trial

Court.

19. Accordingly appeal being devoid of sustenance is liable to be and is

hereby dismissed.

Sd/-/-/--

(Parth Prateem Sahu) Judge Praveen