1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
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
Versus
• 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
stipulations.
2
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
under:
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
3the 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
appellant.
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
sustained.
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.
4
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
5
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
6
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
7
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
prosecutrix.
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
8
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
FIR.
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
9
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.
Sd/-
(Ram Prasanna Sharma)
Judge
Raju
10
