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Chhabilo vs State Of Chhattisgarh 41 … on 29 October, 2018

HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 11 of 2009
Judgment Reserved on 08-10-2018
Judgment delivered on 29-10-2018

• Chhabilo, s/o. Jaidev Mochi, aged about 25 years, r/o. Village
Shakarpur Tukda, Police Station Sankara, District Mahasamund
(CG).
—- Appellant
Versus
• The State of Chhattisgarh through Police Station Sankara District
Mahasamund (CG).
– Respondent

————————————————————————————————————–

For Appellant : Mr. Mandavi Bharadwaj, Advocate.
For Respondent/State : Mr. Vinod Tekam, Panel Lawyer

Hon’ble Shri Justice Ram Prasanna Sharma

CAV JUDGMENT

1. This appeal is directed against the judgment of conviction

and order of sentence dated 7-11-2008 passed by the Sessions

Judge, Mahasamund, Session Division Mahasamund (CG) in

Sessions Trial No. 44 of 2008, wherein the said Court convicted

the appellant for the commission of offence under Section 376 (1)

of the Indian Penal Code, 1860 and sentenced him to undergo

rigorous imprisonment for seven years and to pay fine of Rs.2000/-

with default stipulations.

2. In the present case, prosecutrix is PW/1. It is alleged by the

prosecution that on 4-6-2008 at about 8.15 pm prosecutrix was all

alone in the house situated at village Sankarpur and the same time
2

appellant entered into her house and enquired about other family

members and thereafter he dragged the prosecutrix and committed

rape on her. Prosecutrix informed the incident to her brother, father

and other people of the locality. The matter was reported and

investigated. After completion of the trial, the trial Court convicted

and sentenced the appellant as mentioned above.

3. Learned counsel for the appellant would submit as under:

i) Prosecution story appears to be fabricated,

particularly when the incident had said to be taken

place at 8.15 p.m, and first information report was

lodged on the next day at about 11.00 a.m.

ii) Prosecution has failed to produce any document

relating to the age of the prosecutrix and there is

no document to show the fact that prosecutrix was

below 16 years of age at the time of incident.

iii) The trial Court has overlooked the material

contradiction between statement before the court

and the statement recorded during investigation

under Section 161 of Code of Criminal Procedure,

therefore, finding arrived at by the trial Court is not

sustainable.

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iv) The trial Court has ignored the material aspect of

the matter and sentence awarded by the trial court

is excessive, therefore, the same is liable to be

reversed.

4. On the other hand, learned State counsel supporting the

impugned judgment would submit that the finding of the trial

Court is based on proper marshaling of evidence which is not

liable to be interfered while invoking jurisdiction of the appeal.

5. I have heard learned counsel for the parties and perused

the record of the lower court in which impugned judgment has

been passed.

6. To substantiate the charge, prosecution examined as many

as ten witnesses. In the present case, date of incident is 1-6-

2008 at about 8.15 pm and report was lodged at Police Station

Sankara on the next day of the incident i.e., 2-6-2008 at bout

11.00 a.m. The place of incident is village Sankarpur which is

situated at a distance of 22 kms from Police Station Sankara. It

is mentioned in the FIR that due to incident happened at night

the matter was reported on the next day morning in which name

of the appellant is mentioned as culprit and his act is also

mentioned. PW/1 prosecutrix deposed before the trial Court that
4

at the time of incident, she was all alone in her house when the

appellant reached there and enquired about her parents. When

she replied that they were not within the four corners of the

house, the appellant caught her, dragged her and thereafter

committed rape on her. Version of this witness is supported by

version of Labhoram (PW/2) who is father of the prosecutrix,

PW3 Vishram and PW/4 Sadhuram. All the witnesses have been

subjected to searching cross examination but they are unshaken

and nothing could be elicited in favour of defence. Version of

these witnesses is supported by version of Dr. Smt. Tara

Agrawal (PW/6) who examined the prosecutrix on 2-6-2008 at

Community Health Centre, Pithora, District Mahasamund and

noticed the following injuries on her body as per Ex.P/7.

I/M 2 Black moles at the neck.
O/E External Examination:
Physically and mentally sound, see sex

duration not fully developed, multiple stretch
mark present on both arm back, legs,
anteriorly and posteriorly looked reddish
black colour – c/o. Pain all over body
specially on back – long – 8 days back.

Internal Examination:

Hymen intact but swollen tender and dilated
admits index finger easily around the hymen
5

therein laterally, tenderness present
underneath the formidable looked swollen
tender, PV cut small in the A/V. Two vaginal
slides made, packed, sealed and handed
over to the constable to be sent for chemical
analysis.

Doctor opined that ether are signs of recent
sexual intercourse. Accused could not
penchute the hymen fully. Duration of injury
within 24 – 48 hours.

7. From the evidence of this witness, she found character of

instant intercourse of prosecutrix. This witness is also subjected

to cross-examination but her opinion is not rebutted and there is

no other expert opinion contrary to the opinion of this witness.

Therefore, it is proved that the injuries were found on the body of

the prosecutrix. Version of this witness is supported by version of

Dr. Laxmi Shankar Prasad (PW/7) who examined the appellant

and found him to be capable of intercourse. While lodging the

report at Police Station on the next day of the incident, it is

properly explained that due to incident happened at night, the

report could not be lodged on the same day and it is lodged only

on the next day morning. Looking to the facts of the case, it

cannot be said that report is delayed and explanation on this

count is just and proper. Again, there is no material contradiction
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regarding commission of rape in the statement of any of the

witnesses. The statement of the prosecutrix is of sterling quality

and this Court has no reason to discard the same. Therefore,

argument advanced on behalf of the appellant is not sustainable.

8. Commission of rape by the appellant is clearly established

from the evidence adduced by the prosecution which is an

offence punishable under Section 376 of the IPC for which the

trial Court has convicted the appellant and the same is hereby

affirmed. Offence under Section 376 of IPC is punishable with

imprisonment for life and minimum punishment that can be

awarded is seven years. The trial Curt has awarded sentence of

seven years which cannot be termed as harsh, disproportionate

or unreasonable. Sentence part is also not liable to be interfered

with by this Court.

9. Accordingly, the appeal is liable to be and is hereby

dismissed. As the appellant is reported to be in jail, no further

order for his arrest etc., is required.

Sd/-

(Ram Prasanna Sharma)
JUDGE

Raju

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