HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 119 of 2009
Udesh Kumar, S/o Ratiram Thakur, aged about 22 years, R/o
Pendra, Thana- Chhura, District- Raipur (C.G.)
State of Chhattisgarh, through Station House Officer, Police Station –
Chhura, District- Raipur (C.G.)
For Appellant : None.
For State/respondent : Mr. Vinod Kumar Tekam, PL.
Hon’ble Shri Justice Ram Prasanna Sharma
Judgment On Board
1. Mr. Abdul Wahab Khan, Advocate has been engaged for
arguing the case on behalf of the appellant. Despite repeated
calls, he has not appeared when the case is called for final
hearing, therefore, Mr. Subhash Yadav, Advocate, who is
present in the Court has been appointed as Amicus Curiae to
argue the case on behalf of the appellant.
2. This appeal is preferred under Section 374 of the Code of
Criminal Procedure, 1973 against judgment dated 29.01.2009
passed by Additional Sessions Judge, Gariyaband, District-
Raipur (C.G.) in Session Trial No. 50/2008, wherein the said
court convicted the appellant for commission of offence under
Section 376 (1) of IPC, 1860 and sentenced to undergo R.I.
for 10 years and fine of Rs. 500/- with further default
3. In the present case, prosecutrix is PW-2. As per version of the
prosecution, the prosecutrix was cleaning utensils at about
8:00 p.m. on 21.11.2008. At the same time, the appellant
reached there, by pressing her mouth taken her to kitchen
garden of one Kawal Singh, thereafter, removed her cloth and
committed rape on her. Matter was reported and investigated.
The appellant was charge-sheeted and after completion of
trial, the trial court convicted as mentioned above.
4. Learned counsel for the appellant submits as under:-
(i) The prosecutrix is deaf and dumb and her statement is
recorded on the basis of indication of her mother which is
(ii) Medical expert is not supporting version of the
prosecutrix and the trial court has overlooked the material
contradiction and omission in the statement of the prosecutrix,
therefore, the finding arrived at by the trial court is liable to be
5. Learned State counsel submits that the finding arrived at by
the trial court is based on proper marshaling of evidence and
the same does not warrant any interference of this Court with
invoking jurisdiction of the appeal.
6. The prosecutrix (PW-2) deposed that the appellant forcibly
taken her to kitchen garden and by pressing her mouth, made
her lie down in surface, removed her underwear and
thereafter committed rape on her. Version of this witness was
subjected to searching cross-examination, but she remained
unshaken. No objection was raised at the time of recording
statement of the prosecutrix that she is not competent
witness, therefore, argument advanced on behalf of the
appellant that the prosecutrix is not competent witness, is not
7. Version of the prosecutrix is supported by version of Hemin
Bai (PW1), Hemsingh (PW-3), Krant Kumar (PW-4) and Vimla
Bai (PW-6), who searched the prosecutrix when she was
missing from the place of cleaning utensils and she informed
that rape is committed by the appellant.
8. Version of direct evidence is supported by version of Dr. A.N.
Toppo (PW-7). As per version of this witness, he noticed
multiple abrasion on front of neck and front of chest
measuring 1 – 2 cm. and two abrasion on soldier about 1 cm.
x 0.5 cm. He again deposed that there is white discharge like
semen outside of vagina of the prosecutrix. Her hymen was
ruptured and there was swelling in vulva. Hymen was torn
measuring 0.4 – 0.5 cm. This evidence is supportive piece of
evidence. Again, Dr. I. Nageshwar Rao (PW-8) examined the
appellant and found him capable of intercourse. All the
witnesses have been subjected to searching cross-
examination, but nothing could be elicited in favour of the
9. The incident took place on 21.11.2008 and report was lodged
on next date i.e. on 22.11.2008 at Police Station- Chhura.
Though, there is delay of one day in lodging report, but the
fact remains, 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 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 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 FIR.
10. 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 and other
witnesses. Considering all the facts and circumstances of the
case, it appears that the trial court has evaluated the entire
evidence elaborately and this Court has no reason to record
Heard on the point of sentence
11. The trial court awarded R.I. for 10 years which cannot be
termed as harsh, disproportionate or unreasonable looking to
the facts and circumstances of the case and the same is not
liable to be interfered with. The sentence part is also not liable
to be interfered with. Accordingly, the appeal is liable to be
and is hereby dismissed.
12. It is reported that the appellant has suffered full jail sentence
and has been released from jail after getting benefit of
remission, therefore, no further order of arrest etc. is required.
(Ram Prasanna Sharma)