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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.)
—- Appellant
Versus
State of Chhattisgarh, through Station House Officer, Police Station –
Chhura, District- Raipur (C.G.)
—- Respondent
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For Appellant : None.
For State/respondent : Mr. Vinod Kumar Tekam, PL.

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Hon’ble Shri Justice Ram Prasanna Sharma
Judgment On Board
07/12/2018

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

stipulations.

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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

doubtful.

(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

reversed.

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
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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

tenable.

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

defence.

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.
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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

contrary finding.

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
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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.

Sd/-

(Ram Prasanna Sharma)
Judge

Arun