Jaichand vs State Of Chhattisgarh
2022 Latest Caselaw 782 Chatt

                                                                        NAFR
              HIGH COURT OF CHHATTISGARH, BILASPUR


                      Criminal Appeal No.278 of 2014

                   Judgment Reserved on :        8.2.2022
                   Judgment Delivered on :      15.2.2022

Jaichand, son of Shri Gandaram Dhruv, aged about 40 years, resident of
Village Jamlikala, P.S. and Tahsil Mahasamund, Civil and Revenue District
Mahasamund, Chhattisgarh
                                                            ---- Appellant
                                   versus
State of Chhattisgarh through D.M., Mahasamund, Civil and Revenue District
Mahasamund, Chhattisgarh
                                                               --- Respondent

For Appellant         :         Shri Vineet Kumar Pandey, Advocate
For Respondent        :         Shri Himanshu Kumar Sharma, Panel Lawyer


           Hon'ble Shri Justice Rajendra Chandra Singh Samant
                Hon'ble Shri Justice Arvind Singh Chandel

                               C.A.V. JUDGMENT

Per Arvind Singh Chandel, J.

1. This appeal is directed against the judgment dated 17.12.2013

passed by the Additional Sessions Judge, Fast Track Court,

Mahasamund in Sessions Trial No.69 of 2013, whereby the

Appellant has been convicted and sentenced as under:

                     Conviction                       Sentence

            Under Section 376 of the        Imprisonment for Life and fine
            Indian Penal Code               of    Rs.500     with   default
                       and                  stipulation
            Under Section 4 of the          (The Trial Court has sentenced
            Protection of Children from     the Appellant only for the
            Sexual Offences Act, 2012       offence under Section 4 of the
            (henceforth 'the Act, 2012')    Act, 2012 as per the provision
                                            contained in Section 42 of the
                                            Act, 2012)

Under Section 506 of the Rigorous Imprisonment for 1 Indian Penal Code year and fine of Rs.500 with default stipulation The sentences are directed to run concurrently

2. Case of the prosecution is that the prosecutrix (PW4) is real

daughter of the Appellant. At the time of incident, she was aged

about 16 years. As per the entries of Kotwari Register (Ex.P8), her

date of birth is 12.12.1997. The Appellant, his wife Sohadra (PW2),

their daughter/prosecutrix (PW4) and their other two children went

to Village Shergaon for employment and all they lived there

together. On 20.3.2013, Sohadra (PW2) informed her elder sister

Asha (PW1) that the prosecutrix (PW4) had fallen ill. On being

asked by Sohadra (PW2), Asha (PW1) took the prosecutrix (PW4)

and her younger sister and brother along with her to Village

Patsivni. At Village Patsivni, the prosecutrix (PW4) was living

silent. On being inquired by Asha (PW1), on 7.4.2013, the

prosecutrix (PW4) informed her that the Appellant had committed

forcible sexual intercourse with her at Village Shergaon in the

midnight of 17.3.2013 and he had also threatened her of life. Due

to fear, she did not disclose the incident to anyone at that time.

Asha (PW1) called the Appellant and Sohadra (PW2) to Village

Patsivni. On their arrival there, Asha (PW1) informed them about

the incident. Thereafter, the Appellant returned. The matter was

reported by Asha (PW1) vide First Information Report (Ex.P1). The

prosecutrix (PW4) was medically examined by Dr. Mrs. B. Bara

(PW10). Her report is Ex.P21 in which she found that hymen of the

prosecutrix was old ruptured, but her vagina was admitting two

fingers tightly. The doctor opined that sexual intercourse was done

with the prosecutrix. Statements of the prosecutrix and other

witnesses were recorded under Section 161 of the Code of Criminal

Procedure. On completion of the investigation, a charge-sheet was

filed against the Appellant. The Trial Court framed charges against

him.

3. In support of its case, the prosecution examined as many as 10

witnesses. In examination under Section 313 of the Code of

Criminal Procedure, the Appellant denied the guilt and pleaded

innocence. No witness was examined in his defence.

4. On completion of the trial, vide the impugned judgment, the Trial

Court convicted and sentenced the Appellant as mentioned in first

paragraph of this judgment. Hence, this appeal.

5. Learned Counsel appearing for the Appellant argued that the Trial

Court has convicted the Appellant without there being sufficient and

clinching evidence on record. There are material contradictions

and omissions in the statements of the prosecutrix and other

witnesses which have not been considered by the Trial Court.

According to the medical report (Ex.P21) of the prosecutrix also, no

external or internal injury was found in her body and, therefore also,

the prosecution has failed to prove its case beyond reasonable

doubt. The incident is of 17.3.2013, but the First Information

Report (Ex.P1) was lodged on 11.4.2013. The delay in lodging the

FIR has not been explained by the prosecution. Hence, the

conviction is not sustainable.

6. Opposing the above contentions, Learned Counsel appearing for

the State supported the impugned judgment of the Trial Court. He

argued that there is sufficient evidence available on record for

conviction of the Appellant. Statements of the prosecutrix and other

witnesses are reliable. Therefore, the Trial Court has rightly

convicted the Appellant.

7. We have heard Learned Counsel appearing for the parties and

perused the statements of the witnesses and other evidence

available on record with utmost circumspection.

8. As regards age of the prosecutrix (PW4), she deposed before the

Court that at the time of incident she was aged about 15 years.

Sohadra (PW2) also deposed that the prosecutrix is about 16 years

of age and entry of her birth was also recorded in the Kotwari

Register. The above oral statements of these two witnesses is not

duly rebutted. Corroborating their statements, Surendra (PW6),

Village Kotwar also deposed that according to the entries of the

Kotwari Register, the date of birth of the prosecutrix is 12.12.1997.

His statement is also not rebutted during cross-examination. Thus,

from the entire evidence available on record, it is well established

that at the time of incident, the prosecutrix was below 16 years of

age.

9. With regard to the incident, the prosecutrix (PW4), in her Court

statement, deposed that in the intervening night of 17 th and 18th of

March, 2013, she was sleeping in her room. At about 2:30

midnight, the Appellant came to her and dragged her to other room

of the house and there he tied her hands behind her back, gagged

her mouth with a piece of cloth and committed rape with her. After

commission of rape, he threatened her of life telling that if she tells

the incident to anyone he will commit rape with her younger sister

also and kill her mother. Therefore, she did not complain about the

incident to anyone. She further deposed that next day, her mother

called her elder sister Asha (PW1). Thereafter, Asha (PW1) took

her and her younger sister and brother to Village Patsivni. She

further deposed that there when her physical condition got worsen,

on being asked by her cousin Rekha (PW5) and Asha (PW1), she

informed them about the incident. Both Asha (PW1) and Rekha

(PW5) corroborated the above statement of the prosecutrix.

Sohadra (PW2) also supported the statement of the prosecutrix and

deposed that on being called by Asha (PW1), she went to her

house. There the prosecutrix told her about the incident.

According to Sohadra (PW2), on coming to know about disclosure

of the incident by the prosecutrix, the Appellant ran away.

10. On a minute examination of the above statements of the witnesses,

it is clear that they have supported the entire case of the

prosecution. Though there are some contradictions and omissions

in their statements, they are not material. With regard to the

incident of commission of rape, the statement of the prosecutrix

(PW4) is fully reliable and is also duly corroborated by the medical

evidence (Ex.P21). The prosecutrix is real daughter of the

Appellant. Sohadra (PW2) is wife of the Appellant and Asha (PW1)

and Rekha (PW5) are close relatives of the Appellant. In their

cross-examination, there is nothing on the basis of which it could be

said that there was any enmity between these witnesses and the

Appellant. Since the prosecutrix is a real daughter of the Appellant,

there is no possibility that she would level false allegation of rape

with her by him. The delay in lodging the FIR has also duly been

explained by the prosecution. Looking to the entire evidence

available on record, in our considered view, the Trial Court has

rightly convicted the Appellant.

11. Consequently, we do not find any merit in the appeal. It is,

therefore, dismissed. The Appellant is in jail. He shall suffer the

sentence imposed upon him by the Trial Court.

                            Sd/-                                  Sd/-

              (Rajendra Chandra Singh Samant)           (Arvind Singh Chandel)
                         Judge                                  Judge

Gopal