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.
• State of Chhattisgarh through PS Kurud, Dist. Dhamari (CG).
For Appellant : Mr. Y.C. Sharma, Advocate.
For Respondent/State : M. Vinod Tekam, Panel Lawyer
Hon’ble Shri Justice Ram Prasanna Sharma
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
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
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
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.
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
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
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
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.
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
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
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.
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
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.
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.
(Ram Prasanna Sharma)