1 2025:CGHC:12155 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 236 of 2024 1 - Nandkumar @ Nandu Yadav S/o Mantram Yadav Aged About 31 Years R/o Village Mopar Ps- Sohela At Present R/o Surkhi Phatak Badi, Ps - Bhatapara Gramin, District - Baldoabazar-Bhatapara, Chhattisgarh. ... Petitioner(s) versus 1 - State Of Chhattisgarh Through District Magistrate District - Balodabazar, Chhattisgarh. ... Respondent(s) For Petitioner(s) : Shri Vijay Shankar Mishra, Advocate For Respondent/State : Shri Vivek Sharma, PL (Hon’ble Shri Justice Arvind Kumar Verma) Judgment on Board 11/03/2025 This appeal under Section 374(2) of the Code of Criminal Procedure,1973 has been preferred against the judgment of conviction and order of sentence dated 18.01.2024 passed by Additional Sessions Judge Bhatpara, District Baloda Bazar, Bhatapara (CG) in 2 S.T.No. H-10/2022. By the impugned judgment the learned trial court had convicted and sentenced the appellant as under: Conviction Sentence Under Section 376 IPC RI for 10 years and fine of Rs. 500/-, in default of payment of fine to further undergo RI for 3 months Under Section 450 IPC RI for 7 years with payment of fine of Rs. 500/- in default of payment of fine, to further undergo RI for 3 months Under Section 506 Part II IPC RI for 2 years with fine of Rs. 500/-, in default of payment of fine, to further undergo RI for 2 months All the sentences are ordered to run concurrently. 2. Brief facts of the case are that on 17.11.2021, prosecutrix made a written complaint at police station Bhatapara Grameen alleging that when her husband had gone to graze the cattle and her in-laws to the fields, she was alone in the house, at that point of time, husband of her sister in law entered and committed rape on her and threatened her not to disclose it to anyone. When her husband came in the evening, she narrated about the incident and her in-laws were informed by the neighbours. Thereafter, the complaint was lodged at police station Bhatapara. During investigation, statement of the prosecutrix and other witnesses were recorded and on the basis of her statement that the appellant entered the house and committed rape and also threatened her, therefore, Sections 450 and 506 IPC were also added. The appellant was arrested on the basis of the sufficient evidence against him. During investigation, on the basis of written report Ex.P-2 FIR Ex.P-1 was registered against the appellant. Spot Map (Ex.P-3) was prepared. Underwear of the prosecutrix was seized vide (Ex.P-9A) and 3 the underwear of the appellant was seized vide Ex.P-15. After taking consent, the prosecutrix was sent for medical examination vide Ex.P-8A to the lady doctor Dr. Monika Ghosh and the report is Ex.P-8. Patwari has prepared the spot map Ex.P-04 and panchnama was prepared vide Ex.P-17. Statement of the prosecutrix under Section 164 Cr.P.C. was recorded Appellant was medically examined and the examination report is Ex.P-14. The seized articles were sent to the FSL vide Ex.P-20 and the report is Ex.P-21. After informing the family members of the appellant vide Ex.P-12, he was arrested. After completion of investigation, the charge sheet for the offence under Sections 450, 376, and 506 (Part II) IPC was filed before the learned Judicial Magistrate First Class, Bhatapara-Baloda Bazar. 3. The case was committed for its trial to the learned Additional Sessions Judge, Bhatapara. The appellant abjured his guilt and claimed for trial. 4. In order to establish the charge against the appellant, the prosecution has examined as many as 11 witnesses. Statement under Section 313 of the Cr.P.C. of the appellant had been recorded in which he denied the material appearing against him and pleaded his innocence and false implication in the case. 5. After appreciation of the oral as well as documentary evidence available on record, the learned trial Court has convicted the appellant and sentenced him as mentioned in para 1 of the judgment. Hence, this appeal. 6. Learned counsel for the appellant would argue that the appellant is innocent and has been falsely implicated in the case. The 4 prosecution has failed to prove its case beyond reasonable doubt. He submits that there is no conclusive evidence on record that the offence has been committed by t he present appellant and the finding of the trial court is based on conjectures and surmises. He submits that even if the prosecution case is taken as it is, offence under the above sections is not sustainable. He further submits that there are material contradictions and omissions in the statement of the prosecution witnesses. The findings of the trial court is against the rule of prudence and without establishing the offence against the particular accused person. He submits that the trial court has wrongly appreciated the statement of the prosecutrix and that she is a consenting party. He submits that the incident is of 17.11.2021 and the report was lodged on 20.11.2021 and that there was delay of 3 days in lodging the report which has not been explained by the prosecution. The alleged offence of rape committed by the appellant has not been made out in view of the age and conduct of the prosecutrix because she has not raised any alarm at the time of commission of alleged forceful sexual intercourse with her. Therefore the appellant is entitled for his acquittal. 7. On the other hand, learned State counsel has opposed the argument made by the learned counsel for the appellant and would submit that the prosecution has proved its case beyond reasonable doubt. The prosecutrix has fully supported her case and her evidence need not be required to be corroborated by other evidence. She being the victim of the offence of rape, her evidence is sufficient to hold guilty the appellant in the offence of rape. He would further submit that had she been engaged in making consensual physical relation with the appellant, she would not have lodged any report against him and 5 therefore the learned trial Court has rightly convicted the appellant and the impugned judgment of conviction and sentence needs no interference. 8. During the course of argument, it has been stated by the learned State counsel that the appellant and the prosecutrix have got married. 9. Heard counsel for the parties and perused the material available on record. 10. Prosecutrix (PW-1) has stated that on the date of incident, her husband had gone to graze the cattle and her in-laws had gone to the fields and she was alone in the house, at that time the appellant who is the husband of her sister-in-law entered and forcefully subjected her to rape. In the evening when her husband came, she narrated the incident and thereafter to the in-laws. On 20.11.2021 FIR Ex.P-1 ws lodged by her. Vijay Kumar Yadav (PW-2) has stated that on the date of incident, when he came in the evening, his wife narrated the incident and had also informed about the incident to the villagers. Dr. Momita Ghosh (PW-3) is the Medical Officer, Community Health Centre, District Baloda Bazar, Bhatapara has medically examined the prosecutrix and opined that there were no signs of inflammation and no definite opinion can be given regarding recent forceful sexual intercourse. Mother of the prosecutrix (PW-9) has stated that the appellant after committed rape had threatened her not to disclose about the incident to any one. She has stated that the in-laws of the prosecutrix were not willing to lodge the report however, she accompanied the prosecutrix to the police station and lodged the report. 6 11. From the statement of the prosecutrix (PW-1) presence of the appellant in her house is established. There is no material contradiction in the statement of prosecutrix therefore, it is not the case where material contradiction is established. Minor contradictions which do not go to the root of the case are insignificant and therefore, minor contradictions have no adverse affect to the entire case of the prosecution. 12. The statement of the prosecutrix is quite natural, inspires confidence and merits acceptance. In the traditional non-permissive bounds of society of India, no girl or woman of self respect and dignity would depose falsely implicating somebody of ravishing her chastity by sacrificing and jeopardizing her future prospect. Evidence of the prosecutrix to be followed at par and when her evidence is inspiring confidence, no corroboration is necessary, but in the present case, there is ample corroborative piece of evidence that soon after commission of the offence, she informed about the incident ot her husband and in-laws on the next day, the prosecutrix had gone to lodge the report but since it was holiday, therefore the report could not be lodged and it was only on 20.11.2021, the FIR was lodged vide Ex.P-1. 13. It is true that there was delay of three days in lodging the report at Police Station. Prosecutrix is a married woman and where report of rape is to be lodged many questions would obviously crop up for consideration before one finally decides to lodge the FIR. It is difficult to appreciate the plight of victim who has been criminally assaulted in such a manner. Obviously prosecutrix must have also gone through great turmoil and only after giving it a serious thought, must have 7 decided to lodge the FIR. Precisely this appears to be the reasons for little delayed FIR. The delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the Police Station to lodge a complaint. In a tradition bound society prevalent in India, more particularly, rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR. 14. The submission of the counsel for the appellant that the complainant had given her consent to the sexual intercourse committed by the appellant is not acceptable. In the State of Uttar Pradesh Vs. Chhotey Lal (2011) 2 Scc 550, the following passage from the judgment of a three judge bench in State of H.P. Vs. Mango Ram (2000) 7 SCC 224, on the meaning of “consent” for the purpose of the offence of rape as defined in Section 375 IPC is quoted (Chhotey Lal case (2011) 2 SCC 550). “20. ….”13… Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whetter there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.” (Mango Ram case (2000) 7 SCC 224). 15. Thus, unless there is voluntary participation by the woman to a sexual act after fully exercising the choice in favour of assent, the court cannot hold that the woman gave consent to the sexual intercourse. From the evidence of PW-1 & PW-2 discussed above, we cannot hold 8 that PW-5 voluntarily participated in the sexual intercourse with the appellant after fully exercising her choice in favour of assent. 16. On the contention of the counsel for the appellant that the complainant had falsely named the appellant out of grudge, we find that the trial court has held that there is no proof of any litigation being there between both the parties. Thus in the absence of any evidence to show that there was any dispute between the families on account which the report has been lodged against the appellant, the court cannot hold that the appellant had been falsely implicated in the offences under Section 450 and 376 IPC. 17. After assessing the evidence, this court has no reason to say that the appellant has been falsely implicated. There is no reason to disbelieve the evidence of prosecutrix. Delay has the effect of putting the Court on guard to search if any explanation has been offered for the delay. In the present case, prosecutrix was fearful after the incident to her husband that is why there is delay of two days in lodging the report and same is properly explained. Therefore, delay has no adverse affect in the facts and circumstances of the case. 18. Consideration all the facts and circumstances of the case, this court is of the view that the case law cited by learned counsel for the appellant is clearly distinguishable from the facts of the present case. 18. The trial Court has evaluated the evidence elaborately and this court has no reason to substitute the contrary finding. House trespass for an offence which is punishable with imprisonment for life is an offence under Section 450 of IPC and rape is punishable under Section 9 376 (1) of IPC for which the trial Court has convicted the appellant and same is hereby affirmed. 19. So far as the sentence part is concerned, the trial Court awarded RI for 10 years for offence of rape under Section 376 of IPC and RI for 7 years for offence of house-trespass under Section 450 of IPC and RI for 2 years for the offence of Section 506 Part II IPC which cannot be termed as harsh or unreasonable or disproportionate. Sentence part is also not liable to be interfered with. 20. Accordingly, the appeal being devoid of merits is liable to be and is hereby dismissed. Appellant is in jail therefore no further order is required. Sd/- (Arvind Kumar Verma) Judge SUGUNA DUBEY Digitally signed by SUGUNA DUBEY Date: 2025.05.24 11:51:04 +0530