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Rakesh Kumar Yadav vs State Of Chhattisgarh 59 … on 28 November, 2018


Judgment reserved on 14-11-2018
Judgment delivered on 28-11-2018

CRA No. 550 of 2009

• Rakesh Kumar Yadav s/o. Hariram, aged about 30
years, occupation Labour r/o. Village Gattasilli, P.S.
Nagari, District Dhamtari (CG).
—- Appellant
• State of Chhattisgarh through Police Station Nagari,
District Dhamtari (CG).
—- Respondent


For Appellant : Mr. D.N. Prajapati, Advocate

For respondent/State : Mr. Vivek Sharma, Govt. Adv.


Hon’ble Shri Justice Ram Prasanna Sharma
CAV Judgment

1. This appeal is preferred against the judgment of

conviction and order of sentence dated 28-7-2009 passed by

the Special Judge (Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989 (for short, “the Act, 1989”)

Dhamtari, District Dhamtari in Special Sessions Trial No. 17

of 2008 wherein the said Court has convicted the appellant

for commission of offence under Sections 450 376 (1) of

the IPC and sentenced him to undergo rigorous

imprisonment for three years and to pay fine of Rs.5,000/-

and RI for five years and fine of Rs.5,000/- with default



2. As per prosecution case, on 22-3-2008 at about 8.00

pm at village Gattasilli, prosecutrix (PW/3) was sitting along

with her husband namely Amritlal, Diwakar and appellant

Rakesh Kumar Yadav in front of her house. After sitting for

sometime her husband and his friend Diwakar had gone

towards town. When she entered into her house, the

appellant forcibly entered into her house and committed

sexual intercourse with her without her consent and against

her will. When she shouted her daughter Mamta came to

her room and the appellant threatened her of life. Later on

her husband Amritlal and Diwakar both entered into the

room and saw the incident. Thereafter the appellant fled

away from the spot.

3. Prosecutrix went to the house of Neera Bai (DW/2)

due to fear that her husband may assault her. The matter

was reported and investigated. After completion of trial, the

trial Court convicted and sentenced him as aforementioned.

4. Learned counsel for the appellant would submit as


i) Conduct of the prosecutrix after incident
would show that she was a consenting
party and was having relation with the
appellant, therefore, no offence is made
out. The trial Court committed an error by
disbelieving the statement of defence
witness, particularly the statement of Neera
Bai (DW/2) in which she specifically stated
the fact that prosecutrix has not narrated

the incident to her. The trial Court
committed an error by relying on the
statement of Mamta (PW/2) who is
daughter of the prosecutrix whose version
does not support sexual intercourse by the

ii The trial Court should have seen that
important witness namely Diwakar (PW/8)
has turned hostile and not supported the
version of prosecution.

Iii) There are major contradictions and
omissions in the statement of Amritlal
(PW/3), prosecutrix (PW/1) and Mamta
(PW/2) which have been overlooked by the
trial Court.

iv) It is established that the appellant and the
husband of prosecutrix were having
previous enmity and the appellant

succeeded in Panchayat election and there
is delay in lodging the FIR, therefore,
finding of the trial Court is not liable to be

v) In support of his arguments, he placed
reliance on the decision of this court in the
matter of Bhuneshwar Sahu vs. State of
MP (Now CG) 2012 (4) CGLJ 416.

5. On the other hand, learned counsel for the State

supporting the impugned judgment would submit that the

finding of the trial Court is based on proper marshalling of the

evidence and the same is not liable to be interfered while

invoking the jurisdiction of the appeal.


6. I have heard learned counsel for the parties and

perused record of the court below in which impugned

judgment is passed.

7. In the present case, prosecutrix is PW/3. As per

version of this witness, she was sitting in a platform made

near her house along with her husband namely Amritlal,

Diwakar and appellant. After 15- 20 minute, her husband

and Diwakar left the place. Her husband also asked the

appellant to accompany them, but he remained there.

Thereafter, she returned to her home where the appellant

followed her and entered into her house, caught hold her

hand, dragged her inside the room, thrashed her on cot,

removed her clothes and thereafter he inserted his penis into

her vagina and committed rape on her. When she cried, her

daughter namely Mamta (PW/2) reached there to whom the

appellant threatened to kill. Thereafter Mamta came out of

the house and shouted thereafter her husband Amritlal and

Diwakar reached there and pushed the appellant out of the

room. As per version of this witness, she narrated the story

to her husband. From the evidence of this witness, it

appears that she was fearful to her husband that he may

assault her that is why she left the house and went to

Gundrapara (para 18) and after two days report of the

incident was lodged at Police Station Nagari. Version of

this witness is supported by version of PW/2 Mamta who is

her daughter who saw the appellant lying over the

prosecutrix and he threatened her to kill. She further deposed

that she came out of the house and cried and thereafter her

father Amritlal and Diwakar reached there. Version of

Mamta (PW/2) and prosecutrix (PW/3) is supported by the

version of Amritlal (PW/1) who is husband of the prosecutrix.

8. Presence of the appellant in the house of the

prosecutrix is established by the statement of Diwakar

(PW/8). Dr. D.R. Thakur (PW/7) who examined the appellant

found him capable of intercourse. All the witnesses have

been subjected to searching cross-examination but nothing

could be elicited in favour of defence side. Looking to the

conduct of the appellant, it appears that he knew about non-

presence of husband of the prosecutrix in the house,

because husband of the prosecutrix left the platform near

the house with Diwakar (PW/8) and prosecutrix entered into

her house alone. Following the prosecutrix even after

knowing that her husband is not in the house shows

fraudulent intention of the appellant. Prosecutrix cried when

she was dragged by the appellant and her daughter

reached to the spot who saw the appellant lying over the

prosecutrix. If prosecutrix would have been a consenting

party, she would not have cried for help and conduct of the

prosecutrix during the course of offence shows that act was

committed against her will and without her consent.

Argument advanced on behalf of the appellant regarding

consent of the prosecutrix, is not acceptable.

9. From the statement of Mamta (PW/2), Amritlal (PW/1)

and Diwakar (PW/8), presence of the appellant with

prosecutrix is established. The other witnesses are not the

real witnesses of the incident and therefore, version of other

witnesses is not categorical and real witnesses and no

finding can be arrived at on the statement of other witnesses.

There is no material contradiction in the statement of

prosecutrix, her daughter and her husband and all have

deposed in one voice and therefore, it is not the case where

material contradiction is established. Minor contradictions

which do not go to the root of the case are insignificant and

therefore, minor contradictions have no adverse affect to the

entire case of the prosecution.

10. The statement of the prosecutrix is quite natural,

inspires confidence and merits acceptance. In the traditional

non-permissive bounds of society of India, no girl or woman

of self respect and dignity would depose falsely implicating

somebody of ravishing her chastity by sacrificing and

jeopardizing her future prospect. Evidence of the prosecutrix

to be followed at par with an injured witness and when her

evidence is inspiring confidence, no corroboration is

necessary, but in the present case, there is ample

corroborative piece of evidence that daughter of the

prosecutrix reached to the spot while process was going on

and again husband of the prosecutrix also reached to the

spot and found the appellant in the company of the


11. It is true that there is delay of two days in lodging the

report at Police Station. Prosecutrix is a married woman, she

was fearful after the incident to her husband that is why she

left the place for one day and thereafter prosecutrix and her

husband lodged the report after two days of the incident.

Where report of rape is to be lodged many questions would

obviously crop up for consideration before one finally decides

to lodge the FIR. It is difficult to appreciate the plight of

victim who has been criminally assaulted in such a manner.

Obviously prosecutrix must have also gone through great

turmoil and only after giving it a serious thought, must have

decided to lodge the FIR. Precisely this appears to be the

reasons for little delayed FIR. The delay in a case of sexual

assault, cannot be equated with the case involving other

offences. There are several factors which weigh in the mind

of the prosecutrix and her family members before coming to

the Police Station to lodge a complaint. In a tradition bound

society prevalent in India, more particularly, rural areas, it

would be quite unsafe to throw out the prosecution case

merely on the ground that there is some delay in lodging the


12. After assessing the evidence, this court has no reason

to say that the appellant has been falsely implicated. There

is no reason to disbelieve the evidence of prosecutrix, her

daughter and her husband. Delay has the effect of putting

the Court on guard to search if any explanation has been

offered for the delay. In the present case, prosecutrix was

fearful after the incident to her husband that is why there is

delay of two days in lodging the report and same is properly

explained. Therefore, delay has no adverse affect in the

facts and circumstances of the case.

13. Consideration all the facts and circumstances of the

case, this court is of the view that the case law cited by

learned counsel for the appellant is clearly distinguishable

from the facts of the present case.

14. The trial Court has evaluated the evidence elaborately

and this court has no reason to substitute the contrary

finding. House trespass for an offence which is punishable

with imprisonment for life is an offence under Section 450 of

IPC and rape is punishable under Section 376(1) of IPC for

which the trial Court has convicted the appellant and same is

hereby affirmed.

15. Heard on the point of sentence.

The trial Court awarded RI for five years for offence of

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

offence of house-trespass under Section 450 of IPC which

cannot be termed as harsh or unreasonable or

disproportionate. Sentence part is also not liable to be

interfered with.

16. Accordingly, the appeal being devoid of merits is liable

to be and is hereby dismissed. The trial Court will prepare

super-session warrant and issue non-bailable warrant

against the appellant and after his arrest he be sent to jail for

serving out remainder of the sentence. The trial Court to

submit its compliance report on or before 5-2-2019.


(Ram Prasanna Sharma)


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