Chattisgarh High Court
Dilip Verma vs State Of Chhattisgarh on 1 April, 2022
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 2 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 3 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.
4
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 5 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 6 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:
7
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 8 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 9 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 10 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 11 437-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 12 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. fopkj.k ds nkSjku vihydrkZ dk fpfdRlh; ijh{k.k djok;k x;kA vfHk;kstu i{k ds }kjk u rks fpfdRld dk ijh{k.k djok;k x;k rFkk u gh mDr nLrkost dks lkfcr fd;k x;k A vafre lquokbZ ds nkSjku] vihydrkZ ds fo}oku vf/koDrk us izkIr funsZ'kksa ds vuqlkj ,sls nLrkostksa dh fo"k;oLrq ij fookn ugha fd;kA vkSj fo"k;oLrq dks Lohdkj fd;k x;kA blfy, vfHk;kstu i{k ls vko';d lk{; dks lkfcr djus gsrq lrdZ jgus dh vis{kk dh tkrh gS] ftls vfHk;kstu i{k }kjk n.M izfdz;k lafagrk dh /kkjk 53 ds rgr oS/kkfud :i ls ladfyr fd;k tkrk gSA