HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 160 of 2010
Judgment Reserved on 5-9-2018
Judgment delivered on 11-10-2018

• Suresh Dadsena S/o Shri Tiku Ram Dadsena aged about 21
years, R/o Village Nimohi, Thana Dabhra, District Janjgir
-Champa (CG).
—- Appellant.
Versus
• State of Chhattisgarh through District Magistrate, Janjgir District
Janjgir-Champa (CG).
—- Respondent

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For Appellant : Mr. Surfaraj Khan, Advocate.
For Respondent/State : Mr. Sanjeev Pandey, Govt. Advocate.

Hon’ble Shri Justice Ram Prasanna Sharma

CAV JUDGMENT

1. This appeal is directed against the judgment of conviction

and order of sentence dated 18-2-2010 passed by Additional

Sessions Judge, Sakti, Session Division Janjgir-Champa (CG)

in Sessions Trial No. 166 of 2009 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. As per version of

the prosecution, parents of the prosecutrix were not present in their

house on 15-4-2009 as they went to village Daaraama.. On that
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day in the mid-night at about 12.00 pm prosecutrix was sleeping

along with her younger sister namely Rakhi (PW/5) on the cot

where the appellant entered the house by forcefully thrashing the

door, gagged the mouth of the prosecutrix and committed rape on

her. Prosecutrix narrated the incident to villagers of her village

Nimohi and thereafter the report was lodged on the next day

morning i.e., on 16-4-2009. The matter was 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) As per version of prosecutrix (PW/1) she was

sleeping with her younger sister namely Rakhi

(PW/5) and the appellant committed rape on her

on the same cot which is not possible and the

story becomes doubtful. Even otherwise, it seems

to be a case of consent.

ii) Version of the prosecutrix is not supported by the

version of medical evidence of Dr. Smt.

Shashikala Miri (PW/8) who has not given any

definite opinion.

Iii) The trial Court has erred in appreciating the age of
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the prosecutrix.

iv) The trial Court has not evaluated the evidence of

PW/9 Boondram, PW/4 Jagatram, PW/10

Rathmati, PW/13 Gorakh, PW/17 Lalith and

PW/14 Paluram who have not supported the

version of the prosecution, therefore, the finding of

the the trial Court is liable to be reversed.

He placed reliance on the decisions of Hon’ble

High Court of MP and CG in the matter of Jeev

Rakhan vs. State of MP, reported in 2004 (III)

MANISA 100 (MP), Madan Lal vs. State of CG,

reported in 2007 (1) MPHT 42 (CG) and Mukesh

Kumar vs. State of CG, reported in 2007 (III)

MANISA 72 (CG).

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. In the present case, date of incident is 15-4-2009 at

midnight and report was lodged on the next day morning ie,.,16-

4-2009. The place of incident is village Nimohi which is situated
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at the distance of 8 kms from Police Station Dabhra where the

report is lodged by the prosecutrix in which name of the appellant

is mentioned as culprit. Prosecutrix deposed that she was

sleeping on the cot along with her younger sister namely Rakhi

(PW/5) in her house which is situated at village Nimohi and at

12.00 pm the appellant entered into her house, firstly he

removed his dress and thereafter he torned her clothes. She

further deposed that one knife was shown by the appellant at the

time of incident and thereafter he committed rape on her by

inserting penis into her vagina. When she pushed her sister with

her leg she woke up and started crying at his brother and

thereafter the appellant fled away from the spot. As per version

of this witness, appellant left his full pant and knife in her house.

Just after the incident her brother Mohan Lal (PW/3) came there

and people of the locality namely Jagatram, Boondram, Gorakh

were also called there and thereafter the matter was reported to

Police Station. Version of this witness is supported by version of

Ku. Rakhi (PW/5). As per version of this witness, when leg and

hand of the prosecutrix touched her body, she woke up and saw

the appellant lying over her sister who is prosecutrix. Both the

witnesses have stated that full pant and belt of the appellant

were left in their house.

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6. As per version of (PW/16) G.B. Sahu, Investigating Officer,

Sub Inspector, he seized full pant of the appellant from the house

of the prosecutrix. Both the witnesses have been subjected to

cross examination but nothing could be elicited in favour of the

defence. Dr. G.S. Miri (PW/15) examined the appellant and

found that the appellant was capable to perform sexual

intercourse. Dr. Smt. Shashiikala (PW/8) who examined the

prosecutrix found her hymen ruptured.

7. Now the point for consideration is whether it is the case of

consent. When prosecutrix was sleeping in her house, the

appellant entered into her house by thrashing the door, therefore,

there is no scope to say that the appellant entered into the house

at mid night due to any call by any one. The act of the appellant

is intentional and forceful. From the evidence of the prosecutrix,

it is clearly established that the appellant committed sexual

intercourse with her without her consent and against her will.

Version of prosecutrix is supported by the direct evidence of Ku.

Rakhi (PW/5). It is not the case where the prosecutrix has moved

any where of her own will with the appellant, therefore, the act of

the appellant is not an act of consent and, therefore, his act is

rape as defined in Section 375 of the IPC. Version of prosecutrix

and Ku.Rakhi (PW/5) is supported by version of PW/2 Sita Bai

and Mohan Lal (PW/3) who are mother and brother of the
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prosecutrix and there is no reason to disbelieve the statement of

these witnesses who are firm even after searching cross-

examination.

8. True it is that PW/9 Boondram, PW/4 Jagatram, PW/10

Rathmati PW11 Teekaram and PW/12 Paluram have not

supported the version of the prosecution but they are not

witnesses of the incident. Offence of rape is committed in

secrecy and these witnesses assisted during investigation after

lodging of the FIR. If these witnesses are not the real witnesses

of the incident, their version is not adversely affecting the case of

the prosecution. Argument advanced on behalf of the appellant is

not sustainable.

9. Considering all the facts and material on record, this court

is of the view that the case laws cited by learned counsel for the

appellant are clearly distinguishable from the facts of the present

case.

10. From the statement of the prosecutrix, other supportive

piece of evidence and the evidence of medical expert, it is clearly

established the guilt of the appellant which is punishable under

Section 376 (1) of the IPC for which the trial Court has convicted

the appellant and the same is hereby affirmed. The trial Curt

awarded the minimum sentence and less than minimum
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sentence cannot be awarded. Sentence part is also not liable to

be interfered with.

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

dismissed. The appellant is reported to be on bail. His bail bonds

shall stand cancelled. The trial Court will prepare super session

warrant and issue warrant of arrest against him. After his arrest

he be sent to concerned jail to serve out the remaining part of

the jail sentence. The trial Court to submit compliance report on

or before 11th January, 2019.

Sd/-

(Ram Prasanna Sharma)
JUDGE

Raju