The conviction for rape and trespass was upheld based on credible witness testimony, and the sentence was reduced considering the time elapsed since the crime.

JUDGMENT :

Sanjay Kumar Jaiswal, J.

1. The present appeal arises out of the impugned judgment of conviction and order of sentence dated 31.01.2003 passed by the Additional Sessions Judge (FTC), Kawardha (C.G.) in Sessions Trial No.163 of 2001 whereby, the learned Additional Sessions Judge convicted the appellant and sentenced him as under :-

2. The prosecution story, in brief, is that, prosecutrix (PW-5) was aged about 15 years and resident of village Singhanpuri. Prior to 15-16 days of 28.10.2001, prosecutrix and her younger brother, namely, Netram was present in their house. At about 11.00 AM, prosecutrix was making food, at that relevant time, appellant came to their house and talked with Netram. About half an hour appellant talked with Netram, thereafter, Netram went to his room for sleep. Appellant locked his door from outside and came to the kitchen where he pushed the prosecutrix and committed sexual intercourse with her, on account of which, prosecutrix got unconscious. Upon shouting of Netram, his grandmother (who died during the pendency of case before the trial Court) came and unlocked the door of room of Netram. Thereafter, appellant ran away from the spot. Mother and father of prosecutrix went to Gujarat for livelihood, they came to the village before five days of lodging of report to Police. Prosecutrix narrated the incident to Kotwar Babulal (PW-3), Sarpanch Balvant and her uncle Shatrughan (PW-9). On 28.10.2001, at about 12.00 noon, prosecutrix lodged a report against the appellant bearing Crime No.79 of 2001 vide Ex.P/6. Spot map was prepared vide Ex.P/4. Prosecutrix was sent for medical examination and report in this regard has been prepared as ‘positive’. Birth certificate of prosecutrix was also seized. Statements of witnesses were recorded and after completion of investigation, charge-sheet was filed against the appellant.

3. So as to hold the accused/appellant guilty, the prosecution has examined as many as 10 witnesses and exhibited 6 documents, whereas in order to prove the defence, appellant has examined only one defence witness. The statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C., in which, he denied the circumstances appearing against him and pleaded innocence and false implication in the case.

4. After hearing the parties, vide impugned judgment dated 31.01.2023, learned Additional Sessions Judge, has convicted and sentenced the accused/appellant as mentioned in para-1 of this judgment. Hence, the present appeal.

5. Learned counsel for the appellant submits that trial Court has committed gross error in holding that on the date of incident, prosecutrix was minor. It is contended that trial Court has erred in holding that there was inordinate delay in lodging the FIR. It is further contended that prosecutrix was consenting party to the incident. It is argued that finding of the trial Court is based upon the surmises, for which, there is no specific evidence though there was a narration of prosecution story supplied by the Police in the charge-sheet and as such the evaluation, analysis and scrutiny of the evidence were not done properly by the trial Court with proper perspective, sentence imposed upon the appellant is excessive and harsh, therefore, appeal may be allowed.

6. Per contra, learned counsel appearing for the State, supporting the impugned judgment, opposed the arguments advanced on behalf of the appellant.

7. Heard learned counsel for the parties and perused the material on record including the impugned judgment.

8. The prosecutrix was examined as PW-5. At the time of incident, her brother Ne