Virendra Bhagat vs State of Chhattisgarh

Pritinker Diwaker

The appellant has preferred this appeal against the judgment and order dated 10.10.2007 passed by Sessions Judge Jashpur in Sessions Trial No. 49/2007 convicting the accused/appellant under Sections 376(1) and 506 (Part-II) IPC and sentencing him to undergo rigorous imprisonment for ten years and one year respectively on each count. Facts of the case in brief are that on 12.3.2007 at about 1.45 p.m. FIR Ex. P-1 was lodged by the prosecutrix aged about 13 years at the relevant time alleging that on 10.3.2007 she was in her school and during lunch break when she along with her friend Sushila went out to answer the call of nature, accused/appellant came there, caught hold of her hand, forcibly took her to a nearby mango orchard, threatening her of life threw her on the ground and after pulling down her undergarments committed rape on her and that after the incident was over, he again threatened her to be killed in case she disclosed the incident to anyone. It is alleged that on account of being threatened by the accused/appellant, she did not disclose the incident to anyone immediately and informed her mother about the same on the next day of the incident. Based on this FIR, offences under Sections 376 and 506 IPC were registered against the accused/appellant. She was medically examined on 12.3.2007 vide Ex. P-3 by Dr. (Smt.) Kanta Tirki (PW-4). After investigation, challan was filed by the police on 28.3.2007 for the aforesaid offences.

So as to hold the accused/appellant guilty, prosecution has examined 08 witnesses. Statement of the accused/appellant was also recorded u/s 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case.

After hearing the parties, the trial Court convicted and sentenced the accused/appellant as mentioned in paragraph No. 1 of this judgment. Hence, this appeal.

Heard counsel for the parties and perused the material available on record.

Counsel for the appellant submits that there is inordinate delay in lodging the FIR which has not been satisfactorily explained by the prosecution. He submits that as before the incident relations of father and mother of the prosecutrix with the accused/appellant were strained and they were not on talking terms, the accused/appellant has been implicated in a false case. According to the counsel for the appellant on account of some dispute the accused/appellant had also beaten the uncle and father of the prosecutrix and to take revenge a false report has been lodged against him. He submits that the prosecutrix did not raise any cry for help though the incident is said to have taken place very near to the school and all this also shows that the appellant has been implicated in a false case.

On the other hand, counsel for the respondent/State supports the judgment impugned and submits that the statement of the prosecutrix has been duly supported by medical report Ex. P-3 where the doctor examining her had noticed injuries on her private part and opined that she was subjected to sexual intercourse within 48 hours of her examination. He submits that the delay in lodging the FIR has duly been explained by the prosecution as the prosecutrix has categorically stated that on account of threat given by the accused/appellant she did not disclose the matter to anyone immediately and it is on the next day she informed her mother about the same and then the report was lodged. He submits that on account of trivial dispute between the family members of the prosecutrix and the accused/appellant, it cannot be imagined that a tender-aged girl would be used as a weapon in such a manner.

Prosecutrix (PW-1) aged about 13 years at the relevant time, has stated in her evidence that on the date of incident during lunch break at about 12 noon when she along with her friend Sushila had come out to answer the call of nature, accused/appellant came there and catching hold of her took her towards the field and after removing her underwear committed forcible sexual intercourse with her as a result of which she felt pain and blood started oozing from her private part. After the incident, accused left the spot and then she came to her house but on account of fear she did not disclose the incident to anyone on the same day. According to her, she informed her family members about the incident on the next day in the evening and then on the third day the report was lodged. According to this witness, at that time she was aged about 13 years. She has further clarified that as the appellant had threatened her after commission of rape and also because of shame she did not disclose the incident to anyone immediately. In cross examination, this witness remained firm to what she has stated in the examination-in-chief. Mangal Ekka (PW-2) - the father of the prosecutrix has stated in his evidence that age of the prosecutrix at the time of incident was 13 years and that after about two days of the incident she had informed him as to the manner in which the accused/appellant had ravished her. He has categorically stated that he being an illiterate person cannot give the exact date of birth of the prosecutrix. Roopan Ram Toppo (PW-3) is the witness to the spot map Ex. P-4 and seizure of undergarments of the prosecutrix and the accused/appellant made under Ex. P-6 and P-7. He has stated that the prosecutrix had narrated the entire incident to her father. In paragraph 5 of his deposition, this witness has admitted that about 2-3 years there-before, there was some dispute between him, Bhoop Sai and the accused/appellant in which the accused/appellant had slapped him and also subjected the father of the prosecutrix to beating. He however has denied that the FIR has been lodged on account of the old enmity. Dr. (Smt.) Kanta Tirki (PW-4) is the witness who had medically examined the prosecutrix and given her report Ex. P-3 stating that she noticed redness and swelling on her private part, her hymen was recent torn, one finger entered her vagina and that within 48 hours from examination she was subjected to sexual intercourse. Dr. Silvester Tirki (PW-5) is the witness who medically examined the accused/appellant has stated that he was capable of performing sexual intercourse. Ku. Sushila Bai (PW-6) is the witness who had accompanied the prosecutrix during lunch break, has not supported the case of the prosecution and has been declared hostile. Alvin Kujur (PW-7) is the school teacher who has proved the age of the prosecutrix by producing the admission register Ex. P-2C according to which her date of birth is 24.4.1995. Shyamlal Sharma (PW-8) is the investigating officer who has supported the case of the prosecution. Having heard counsel for the parties and perused the material available on record particularly the evidence of the prosecutrix what emerges is that the accused/appellant took her to an isolated place and committed forcible sexual intercourse with her as a result of which she felt pain and blood was oozing from her private part. Evidence of the prosecutrix is fully supported by the medical evidence where the lady doctor examining her has categorically stated that there was redness and swelling on her private part, her hymen was recent torn, one finger entered her vagina and that within 48 hours from examination she was subjected to sexual intercourse. This Court does not find any force in the argument of the counsel for the appellant that there is an inordinate delay in lodging the FIR which has not satisfactorily been explained by the prosecution for the reason that the prosecutrix has categorically stated in her evidence that after commission of offence she got back home but due to life-threat of the accused/appellant and also on account of shame she did not immediately disclose the incident to anyone but she informed her mother about the same on the next evening and then on the third day the report was lodged. In each and every case of rape that too when the statement of the prosecutrix is otherwise trustworthy, delay of few days in lodging the report cannot be termed as inordinate because due to the mental trauma having undergone by the rape victim it is but natural for her not to make the disclosure of such an awful incident to anyone quite promptly and that even after such a disclosure being made it again becomes a matter of due deliberation among the family members particularly the parents to make the matter public by lodgment of report etc.especially looking to the vast future of the girl lying ahead. Thus in this case the delay of two days in lodging the FIR cannot be said to be fatal to the case of prosecution. A heinous act like this on the part of the accused/appellant in ravishing a tender-aged girl aged about 13 years duly corroborated by the evidence of the prosecutrix, her father and the doctor who medically examined her cannot be taken so lightly. Accordingly, the Court below does not appear to have been wrong while appreciating the evidence and basing his conclusion thereupon. Findings recorded by the Court below are just and proper and need no interference in this appeal. Appeal thus being unmerited is liable to be dismissed. It is dismissed as such. As accused/appellant is already in judicial custody, no order regarding his being arrested etc. is necessary.