NEEL KUMAR @ NILU Vs. STATE OF C G

JUDGEMENT

(1.) THE appeal is directed against the judgment of conviction and order of sentence dated 23rd August, 2005 passed by learned Additional Sessions Judge Dhamtari in Sessions Trial No. 27/03 whereby learned Additional Sessions Judge has convicted the Appellant under Section 376(1) of the IPC and sentenced to undergo R.I. for 07 years and to pay a fine of Rs. 200/-, in default of payment of fine to further undergo R.I. for one month.

(2.) CASE of the prosecution, in brief, is that on 6.11.2002 at about 5.0 p.m. when the prosecutrix, was the proceeding towards the place where TRR(festival) was being celebrated in the village, the accused called her in his home on the pretext that she should take medicine for her grand daughter and on her refusal, the accused caught hold of her hand, took her inside the house, committed sexual intercourse with her without her consent and further threatened her that she should not disclose this fact to others or else he would kill her and set her house on fire.

(3.) LEARNED Counsel for the Appellant submits that the prosecutrix is an old lady aged 65 years, she lodged the report after four days of the incident on 10.11.2002 and there is no explanation for the delay. She made material improvements in her statement before the court. The conduct of the prosecutrix is highly unnatural as she did not disclose the incident to anyone for a considerable period. The version of the prosecutrix is also not corroborated by the statement of independent witnesses thought she claims to have narrated the incident to P.W. 5 Chovalal, P.W. 8 Dinu and P.W. 9 Gopaldas, however these witnesses have denied the same. There was discrepancies in the statement of the prosecutrix and other two witnesses namely Motilal (P.W. 2) and Goverdhan (P.W. 6). The trial court has erroneously held that the version of the prosecutrix is duly corroborated by the report of Dr. (Smt.) Vandana Vyas (P.W. 15) though this witness has categorically stated that bleeding found during examination of the prosecutrix was because of infection and carcinoma. Further in Para 9 of her statement the lady doctor has stated the injury described in MLC report could have been caused just before her examination and the prosecutrix was examined after 4 days of the incident.