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Nilkanth Yadav vs State Of Chhattisgarh 3 … on 30 October, 2018

HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 300 of 2009
Judgment Reserved on 25-10-2018
Judgment delivered on 30-10-2018

• Nilkanth Yadav, aged about 46 years, son of Udai ram, resident
of Komkadi (Naari) PS Kurud, District Dhamtari.
—- Appellant
Versus
• State of Chhattisgarh through PS Kurud, Dist. Dhamari (CG).
– Respondent

————————————————————————————————————–

For Appellant : Mr. Y.C. Sharma, Advocate.

For Respondent/State : M. 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 17-3-2009 passed by the Additional

Sessions Judge (FTC), Dhamtari, District Dhamtari (CG) in

Sessions Trial No. 46 of 2008 wherein the said Court convicted

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

and 325 of the Indian Penal Code, 1860 and sentenced him to

undergo rigorous imprisonment for ten years and to pay fine of

Rs.5000/- and RI for three years and to pay fine of Rs. 1000/- with

default stipulations.

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

on 2-7-2009 at about 9.30 pm when prosecutrix was doing the

work of cleaning of utensils by sitting outside of the house, the
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appellant came there, caught hold of the hand of the prosecutrix,

forcefully took her inside the the court-yard/cattle shed and

committed rape on her and threatened her with life on disclosing

the matter to anyone. Prosecutrix disclosed the matter to her

husband on his arrival. After the incident the appellant assaulted

the husband of the prosecutrix who sustained grievous injuries.

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) The incident took place on 2-7-2008 whereas the

report was lodged in Police Station on 4-7-2008,

therefore, case of the prosecution is suspicious.

ii) There is contradictory statement of the prosecutrix

(PW/1) and her husband Mohit (PW/2) which was

overlooked by the trial Court.

iii) The trial Court failed to see the statement of

prosecutrix (PW/1) in which she disclosed that at

the time of incident she raised the alarm but

nobody helped her whereas the house of her

brother-in-law (Jeth) is adjacent to her.
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iv) The trial Court failed to consider the contradictory

statements of PW/1 prosecutrix and her husband

Mohit (PW/2) relating to work of land agent which

discloses inimical relationship between the parties.

v) Statements of children of the prosecutrix are not

taken and opinion of the medical expert is not

supporting the evidence of prosecutrix, therefore,

finding of the trial Court 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. In the present case, date of incident is 2-7-2009 at 9.30 pm

and report was lodged on 4-7-2009 at Police Station Kurud at

about 8.30 pm in which name of the appellant and his act of rape

are clearly mentioned. From the statement of the prosecutrix

(PW/1) it is clear that she informed about the incident to her
4

husband and when he asked her to lodge the report at Police

Station, she called her brother namely Santram who is resident

of Jangaon while the incident took place in village Kokadi (Naari).

From the version of prosecutrix (PW/), her husband namely

Mohit (PW/2) and brother Santram (PW/6), it is clearly

established that on saying of the prosecutrix, her brother

Santram was called from village Jangaon and thereafter the

matter was reported in Police Station.

7. As per version of Mohit (PW/2), prosecutrix informed him

about the incident on the date of incident and again it was

informed to brother of the prosecutrix on the same day. From the

version of all these three witnesses delay of two days in lodging

the report is properly explained. Delay is material only in those

cases when delay is appearing to be for some concoction in

story. In the present case, appellant is an elder brother of the

husband of the prosecutrix who is well-known to the family.

There is no reason for prosecutrix to rope him in a false charge

and it is not a case where anything developed within two days,

therefore, delay in the present case is not adversely affecting the

case of prosecution.

8. As per version of prosecutrix, on the date of incident at

about 9.30 pm her husband had gone to village Nawapara and at
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the same time appellant came there and demanded sexual

favour. Upon her denial he forcefully took her near cattle shed

and after shutting her mouth he threw her into surface, removed

her undergarments and then inserted his penis into vagina of the

prosecutrix. Version of this witness is supported by version of

Mohit (PW/2), Santram (PW/6) and Naresh Kumar (PW/4) to

whom the incident was informed. Again, version of this witness is

supported by Doctor Smt. Aaga Tripathi (PW/11) who examined

the prosecutrix on 5-7-2008 at District Hospital, Dhamtari and

found defused swelling seen in middle 2/3 of left arm and opined

that tender on touch caused by hard and blunt object and it is

caused within 2 – 3 days of the incident which shows that

prosecutrix sustained injury during the course of incident. Again,

Dr. Uma Shankar Navratan (PW/16) examined the appellant and

opined that he was capable of performing intercourse. There is

nothing in testimony of the prosecution witnesses which

adversely affected the root of the case. It is settled law that minor

contradictions and omissions which do not go to the root of the

case are insignificant and same cannot be a ground for

discarding the evidence of the prosecution. This court has re-

assessed the entire prosecution evidence and has no reason to

record contrary finding what is recorded by the trial Court.
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9. One defence witness namely Satrughan (DW/1) is

examined by the appellant before the trial Court who deposed

regarding abusive words used by Mohit (PW/2) against the

appellant. Version of this witness irrelevant in the present case

which is based on charge of rape which is committed in secrecy,

therefore, version of this witness is not relevant in deciding the

main issue. Argument advanced on behalf of the appellant is not

sustainable.

10. As per version of Mohit (PW/2), appellant assaulted him by

club and he got unconscious and admitted in District Hospital,

Dhamtari for medical treatment. This witness is subjected to

searching cross-examination on this point, but he is firm on his

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

Dr. Vijay Fulmaali (PW/9) who examined this witness on 5-7-

2008 at Community Health Centre, Kurud and noticed the

following injuries.

I) Lacerated wound over forehead in the size of
½” x ½ ”

ii) Lacerated wound over parietal region in the
size of 2″x ½ ”

Iii) Skull cateno over right forearm near wrist .

iv) Abrasion over right fore arm
v) Skull cateno over iliac bone
vi) Injury over left thigh.
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11. As per version of this witness, Mohit (PW/2) was subjected

to x-ray examination and after x-ray he found that there was

linear fracture in occipital region on fore-head and found linear

fracture in 4th 5th ribs of injured Mohit which was grievous in

nature. Version of this witness is unshaken during cross

examination and there is no other expert’s opinion contrary to

this opinion and there is no reason to reject the opinion of this

medical expert and on the basis of report of this medical expert

it is established that the appellant caused grievous injury on the

body of Mohit (PW/2) who was husband of the prosecutrix. Case

of the appellant does not fall in any of the exception and his act

is intentional in nature, therefore, it is a case that the appellant

voluntarily caused grievous injury on the body of Mlohit and the

act of the appellant squarely falls within mischief of Section 325

of IPC.

11. On over-all assessment, it is established that the appellant

committed rape on prosecutrix which is an offence punishable

under Section 376(1) of IPC and again he caused grievous injury

on the body of husband of the prosecutrix which is an offence

punishable under Section 325 of IPC for which the trial Court

has convicted the appellant which is not liable to be interfered

with by this court. Conviction of the appellant is hereby affirmed.
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12. Heard on the point of sentence.

Looking to the cruelty of the appellant, first he ravished

wife of his brother and then caused grievous injury on the body

of his brother, it is not a case for reduction of sentence. The Trial

Court is correct in awarding the sentence of ten years for offence

under Section 376(1) of IPC and three years for offence under

Section 325 of IPC. Sentence part is also not liable to be

interfered with by this court.

13. 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 29th January, 2019.

Sd/-

(Ram Prasanna Sharma)
JUDGE

Raju

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