DAULAT RAM RATHIYA Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) THIS appeal has been preferred against the judgment and order dated 28.5.2008 passed by Sessions Judge, Raigarh, in Sessions Trial No. 133/2007 convicting the accused/appellant under Section 376 IPC and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 1000/-, in default of payment of fine to further undergo rigorous imprisonment for three months.

(2.) FACTS of the case in brief are that on 28.9.2007 FIR Ex. P-1 was lodged by Tijabai (PW-2) - mother of the prosecutrix - a mentally challenged girl aged about 16 years alleging that on that day at about 2.30 p.m. the prosecutrix had gone to the field to answer the call of nature and when she did not return home for sufficient long time, she started making search for her and on reaching a coal dumping place she saw the accused/appellant removing her clothes and was making an attempt to make physical relation with her. Based on this report, offence under Section 354 IPC was registered against the accused/appellant. On 2.10.2007 a written report Ex. P-3 was given by Tijabai (PW-2) to Superintendent of Police, Raigarh mentioning in it that on the date of incident she saw the accused/appellant ravishing the prosecutrix and after bringing her home she informed the incident to the villagers and the accused/appellant also admitted his guilt. In the written report she also mentioned that on the date of incident itself she had lodged the report regarding rape but instead of an offence under Section 376 the police registered a case merely under Section 354 IPC. Case diary statement of the mother of the prosecutrix namely Tijabai (PW-2) was recorded on 29.9.2007 whereas that of prosecutrix on 3.10.2007. Prosecutrix was medically examined on 2.10.2007 vide medical report Ex. P-8. Chemical analyst's report Ex. P-14 received from the Forensic Science Laboratory also confirms the presence of spermatozoa on the frock and vaginal slides of the prosecutrix as also on the Lungi of the accused/appellant. After completion of investigation, challan was filed by the police on 25.10.2007 for the offences under Sections 354 and 376 IPC. The Court below however framed the charge against the accused/appellant under Section 376 IPC only.

(3.) COUNSEL for the appellant submits that present is a case where the accused/appellant has been falsely implicated in the case and that the statements of the witnesses being self contradictory are not reliable. He submits that the findings recorded by the Court below are based on hypothetical consideration without there being any evidence in support thereof. He submits that in the initial report lodged by the mother of the prosecutrix there is no allegation of rape but while making the written report to the Superintendent of Police, Raigarh she has alleged that the prosecutrix was subjected to rape also and this shows that the accused/appellant has been dragged in a false and fabricated case. He further submits that there is an inordinate delay of 5 days in making the written report Ex. P-3 which has not been satisfactorily explained by the prosecution. According to the counsel for the appellant, even the medical report of the prosecutrix does not support the case of the prosecution as the doctor examining her has opined that she was habitual to sexual intercourse. He submits that the appellant is an old man of 65 years of age and therefore he cannot be capable of having sex in such an age. Lastly, he submits that if the accused/appellant is going to be convicted at all, sentence imposed on him by the Court below may be reduced to the period already undergone by him.