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Shrawan Kumar And Anr vs State 2 Wps/2759/2018 Kala Patel … on 11 April, 2018

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No.2448 of 1999

Judgment Reserved on : 16.1.2018

Judgment Delivered on : 11.4.2018

1. Shrawan Kumar, aged about 20 years, S/o Shri Ramput Sav,
occupation Agriculturist, R/o Village Khogaro, P.S. Chalgali, District
Surguja, M.P. (now Chhattisgarh)
2. Aditya Kumar, aged about 20 years, S/o Shri Hirachand Teli, R/o
Village Betia, P.S. Chalgali, District Surguja, M.P. (now Chhattisgarh)
—- Appellants
versus

The State of Madhya Pradesh (now Chhattisgarh)
— Respondent
——————————————————————————————————
For Appellants : Ms. Savita Tiwari, Advocate
For Respondent/State : Shri U.K.S. Chandel, Panel Lawyer

——————————————————————————————————

Hon’ble Shri Justice Arvind Singh Chandel

C.A.V. JUDGMENT

1. This appeal is directed against the judgment dated 24.8.1999

passed by the Special Judge under the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Act, 1989 (henceforth

‘the Act of 1989’), Surguja at Ambikapur in Special Criminal Case

No.155 of 1998 convicting and sentencing each of the

accused/Appellants as under:

Conviction Sentence

Under Section 376(2)(g) of Rigorous Imprisonment for 10
the Indian Penal Code years
2

2. Case of the prosecution, in brief, is that the prosecutrix (PW1),

aged about 18 years, was a student of Xth Standard in High

School, Village Chalgali. On 22.7.1998 at about 8:30 a.m., she

had come out of her house situated at Village Amravatipur to go to

school situated at Village Chalgali on a bicycle. At about 10:30

a.m., she reached near a hand-pump situated at Dongrokharapar.

Both the accused/Appellants were standing by the side of the road

with their bicycles. She moved ahead on her bicycle. Both the

Appellants followed her and after climbing on the high of the big

drainage, they started dragging her. Her bicycle and school bag

fell down. Both the Appellants dragging her, took her towards the

jungle. She screamed, but nobody was there. The Appellants

committed rape with her one by one. Leaving her in the jungle,

they fled from there. A written report (Ex.P1) was submitted by the

prosecutrix (PW1) in Police Station Chalgali same day at about

11:30 a.m. On the basis of the written report (Ex.P1), a crime

under Section 376(2)(g) of the Indian Penal Code was registered

vide First Information Report (Ex.P2). The prosecutrix was

medically examined by Dr. Subhadra Paikara (PW15). She gave

her report (Ex.P18) in which she found that two fingers were being

inserted in the vagina of the prosecutrix but with her complaint of

pain. The doctor has stated in her report that sexual intercourse

was done with the prosecutrix, but no definite opinion could be

given regarding rape. Vide Ex.P4, skirt and underwear of the

prosecutrix were seized in which sperm and blood like stains were

present. Vide Ex.P12, a lady bicycle was seized from the spot.

Vide Ex.P13, two gent bicycles and some books were seized from

the spot. Vide Ex.P14, underwear of Appellant Shrawan and vide

Ex.P17, underwear of Appellant Aditya were seized. On
3

completion of the investigation, a charge-sheet was filed against

the Appellants for offence punishable under Section 376(2)(g) of

the Indian Penal Code and Section 3(1)(xii) of the Act of 1989.

Charges were framed against them under Section 376(2)(g) of the

Indian Penal Code and Sections 3(2)(v) and 3(1)(xii) of the Act of

1989 and in the alternative under Section 3(1)(xii) of the Act of

1989 read with Section 34 of the Indian Penal Code.

3. To rope in the accused/Appellants, the prosecution examined as

many as 18 witnesses. Statements of the Appellants were also

recorded under Section 313 of the Code of Criminal Procedure in

which they denied the circumstances appearing against them,

pleaded innocence and false implication. No witness has been

examined in their defence.

4. The Trial Court convicted and sentenced the Appellants as

mentioned in the first paragraph of this judgment. Hence, this

appeal.

5. Learned Counsel appearing for the Appellants argued that on the

date of alleged incident, the prosecutrix was above 16 years of age

and the evidence of Dr. Subhadra Paikra (PW15), who examined

the prosecutrix, is that no definite opinion could be given about

rape with the prosecutrix. If the offence was committed by two

persons then it is expected that the prosecutrix should have

received some injury on her person, but she had not received any

abrasion or contusion on her person. Therefore, the Appellants

have been falsely implicated in the case. The prosecution has
4

examined all the interested witnesses. Due to enmity, the

Appellants have been falsely implicated. Statements of the

prosecution witnesses are not reliable.

6. Per contra, Learned Counsel appearing for the State supported the

impugned judgment of conviction and sentence.

7. I have heard Learned Counsel appearing for the parties and

perused the record with due care.

8. The prosecutrix (PW1) has stated that at the time of incident, she

was studying in Xth Standard in the High School of Village

Chalgali. On the date of incident at about 10:30 a.m., she was

going to her school on her bicycle. On the way, near Village

Dongarokharapara, the Appellants were standing. They followed

her. Near the drainage, both of them caught her. Her school bag

and bicycle fell down. She screamed, but nobody was there.

Dragging her, they took her towards the jungle. After taking her in

the jungle, they committed rape with her one by one. She has

further stated that after the incident, they left her there and ran

away. She straightway went to the police station and narrated

about the incident. The Station House Officer went out of the

police station for search of the Appellants. This fact was brought to

the knowledge of the prosecutrix by the Police Constable present

in the police station. She has further stated that after sometime,

the Station House Officer returned to the police station and told her

that the Appellants were not found. On being asked by the Station

House Officer, she submitted a written report (Ex.P1) in the police
5

station. During cross-examination, she has stated that after the

incident, when she was coming to the police station, on the way,

she found some ladies working at Devaipara, but she did not

disclose them about the incident. She has explained that she did

not disclose them about the incident because they did not ask her.

In paragraph 50, she has categorically stated that there was no

caste related enmity between her family and the families of the

Appellants. In paragraph 44, she has admitted that the written

report (Ex.P1) was not written by her, but the same was signed by

her.

9. Janeshwari (PW3), mother of the prosecutrix has stated that at

about 8:00 a.m., her daughter (the prosecutrix) had gone out of

home for going to school. At about 10:00 – 11:00 a.m., a boy of the

village came to her house and informed that the prosecutrix had

not reached the school. Her school bag and bicycle and two other

bicycles were lying near the drainage. She has further stated that

she went to Police Station Chalgali along with her husband on his

motorcycle. On reaching the police station, they found that the

prosecutrix was weeping there. On being asked that why was she

weeping, she replied them that she had been raped by the

Appellants. In paragraph 12 of her cross-examination, she has

admitted that her husband is Sarpanch of the village and the

Appellants used to oppose him and, therefore, there was an enmity

between them.

10. Phoolchand (PW5), father of the prosecutrix has supported the

above statement of his wife Janeshwari (PW3) and has stated that

when a boy of the village came and informed that school bag and
6

bicycle of the prosecutrix had fallen down and two other bicycles

were standing near the drainage, he along with his wife went to the

police station where they found that the prosecutrix was weeping.

The prosecutrix told about the whole incident to her mother.

During cross-examination, he has admitted that the prosecutrix had

written a report which was illegible and was difficult to be

understood, then a report was got written by a Police Constable

which was signed by the prosecutrix.

11. Phoolkunwar (PW4), a student of the same school where the

prosecutrix was studying, has stated that when she was going to

the school, Appellant Shrawan was standing with a bicycle near a

hand-pump and he asked her whether the prosecutrix was coming

or nor. Thereafter, she went to the school. After sometime, she

came to know that some boys had caught the prosecutrix and

taken away.

12. Narendra Kumar (PW7) has stated that on the date of incident,

when he reached near the drainage, he saw that a lady bicycle

was lying down on the road and two gent bicycles were standing

nearby and some books had fallen down nearby. Ambika Prasad

(PW16) had also accompanied him. At that time, Baijnath Gupta

(PW9), a teacher of the High School, Chalgali also reached there.

He has further stated that when they picked up the books lying

there, they found that name of Appellant Shrawan was written in

one of the books. On being opened the books kept in the school

bag hanging with the lady bicycle, they found that name of the

prosecutrix was written in one of the books. He has further stated

that the matter was informed to the Headmaster by teacher
7

Baijnath Gupta. After some time, Headmaster Toppo and some

school boys reached the spot and they moved ahead for making

search. In paragraph 25, on being suggested, he replied that it is

true that when the Station House Officer asked the prosecutrix

where had she gone, the prosecutrix told him that the Appellants

had caught her and taken away.

13. Ambika Prasad (PW16) has also supported the above statement of

Narendra Kumar (PW7) and has stated that near the culvert two

bicycles were standing and 3-4 books were lying down nearby. He

has not further supported the remaining statement of Narendra

Kumar and has been declared hostile. Ramesh (PW8) has not

supported the case of the prosecution and has been declared

hostile. Baijnath Gupta (PW9), teacher of the High School

Chalgali, has stated that at about 10:15 a.m., he reached the spot

on his motorcycle. He saw that three bicycles had fallen down on

the spot and Narendra Kumar (PW7), Ambika Prasad (PW16) and

2-4 other persons were standing there. He has further stated that

he informed Headmaster Vijay Toppo (PW12) about the incident

and after sometime Vijay Toppo also reached there. After

sometime, Vijay Toppo went to the police station and informed

about the incident. Vijay Toppo has supported the above statement

and stated that after receiving information from Baijnath Gupta

(PW9), he reached the spot and saw that bicycle of the prosecutrix

with school bag had fallen down on the way and two more bicycles

had fallen down there. Apprehending some untoward incident, he

went to the police station and informed about the incident which

was recorded in Rojnamcha Sanha (Ex.P16).

8

14. Dr. Subhadra Paikra (PW15), who examined the prosecutrix on

23.7.1998, has stated that two fingers were being inserted in the

vagina of the prosecutrix but with her complaint of pain. White

liquid was also present inside the vagina of the prosecutrix. She

has further stated that no injury was present on the private part of

the prosecutrix. She has further stated that she found that sexual

intercourse was done with the prosecutrix recently. Her

examination report is Ex.P18. She has also examined skirt and

underwear of the prosecutrix in which she found four white stains

on the skirt and one brown stain on the underwear of the

prosecutrix. Her report in this regard is Ex.P19. She advised for

chemical examination of the clothes of the prosecutrix, but no FSL

report is available on record.

15. Station House Officer of Police Station Chalgali, namely, R.C.

Nishad (PW11) has stated that on the basis of the written report

(Ex.P1), he registered First Information Report (Ex.P2), seized

clothes of the prosecutrix vide Ex.P4, seized a lady bicycle from

the spot vide Ex.P12 and also seized two gent bicycles and some

books from the spot vide Ex.P13. He has further stated that he

recorded the information given by Vijay Toppo (PW12),

Headmaster in Rojnamcha Sanha (Ex.P16). In cross-examination,

he has further stated that after recording the report of Vijay Toppo

vide Ex.P16, he had gone out of the police station for search of the

Appellants and the prosecutrix, but he did not find any of them. He

has further stated that when he returned to the police station, the

prosecutrix was already present there. He has further stated that

he asked the prosecutrix to submit a written report. At that time,

teachers Rajaram and Baijnath Gupta (PW9) were also present in
9

the police station. He has further stated that since the prosecutrix

was weeping, he had asked Rajaram to write a report on behalf of

the prosecutrix and submit after getting her signature thereon.

Thereafter, Rajaram had written the report on behalf of the

prosecutrix and the same was signed by the prosecutrix. Rajaram

has not been examined by the prosecution.

16. S.D.O. (Police) B.P. Rajbhanu (PW18) is the witness who made

further investigation into the offence in question.

17. A minute examination of the evidence available on record makes it

clear that the prosecutrix was a resident of Amravatipur and was a

student of Xth Standard of High School Chalgali. As per her Court

statement, on the date of incident, at about 10:30 a.m., both the

Appellants had chased her near the drainage. After catching her,

they took her towards the jungle wherein they committed rape with

her one by one. As per her statement, her school bag and bicycle

and bicycles of the Appellants were lying down near the drainage.

From the statement of Phoolkunwar (PW4), a student of the same

school where the prosecutrix was studying, it is also clear that she

had seen Appellant Shrawan with a bicycle near the hand-pump

and Shrawan had asked her whether the prosecutrix was coming

or not. Narendra Kumar (PW7) has also supported the above fact

and as per his statement, he also found that a lady bicycle had

fallen down on the spot and two gent bicycles were standing there

and some books had also fallen down there. This was also seen

by Baijnath Gupta (PW9). Headmaster Vijay Toppo (PW12) has

also supported the above fact and he informed the police station

about the incident which was recorded in Rojnamcha Sanha
10

(Ex.P16). As per medical examination report (Ex.P18) of the

prosecutrix given by Dr. Subhadra Paikra (PW15), though no injury

was found on the body of the prosecutrix yet symptoms of recent

sexual intercourse with her were found. As per the statement of

the prosecutrix, the sexual intercourse was committed with her by

the Appellants forcefully in the jungle. Immediately after the

incident, she reached Police Station Chalgali and the matter was

reported by her. Though the written report (Ex.P1) has not been

written by her yet the same was signed by her. No suggestion that

contents of the written report (Ex.P1) were incorrect was put to her

nor has any argument been advanced in this regard. Immediately

after the incident, father and mother of the prosecutrix reached the

police station where they found that the prosecutrix was weeping.

The prosecutrix immediately told her mother about the incident.

Bicycles of the Appellants were seized from the spot along with the

bicycle and school bag containing school books of the prosecutrix

from the spot, but no explanation has been offered by the

Appellants in this regard in their statements recorded under

Section 313 of the Code of Criminal Procedure.

18. From the above discussion of the evidence available on record, it

is established that the Appellants had committed rape with the

prosecutrix and their offence is proved beyond reasonable doubt.

Therefore, the finding of conviction arrived at by the Trial Court is

just and proper and the same does not warrant any interference.

Hence, the conviction imposed upon the Appellants is affirmed.

19. It was argued on behalf of the Appellants that during trial, the

Appellants remained in jail for about 1 year and during pendency of
11

this appeal they remained in jail for about 2 years and 6 months,

that is to say, the Appellants remained in jail for a total period of

about 3 years and 6 months. At the time of commission of offence,

the Appellants were young boys. They were released on bail by

this Court in the year 2002. Looking to the above facts and

circumstances, it would not be appropriate to send them back to

jail again for undergoing the remaining sentence. Therefore, they

may be sentenced with the period already undergone by them. On

the contrary, it was contended by Learned State Counsel that

minimum sentence prescribed for the offence under Section

376(2)(g) of the Indian Penal Code is 10 years’ rigorous

imprisonment. Therefore, the Appellants have rightly been

sentenced by the Trial Court. It was further submitted that no

special reason has been urged on behalf of the Appellants to

sentence them with the period already undergone by them.

20. Having regard to the facts and circumstances of the case,

particularly, the fact that on the date of commission of gang rape by

the Appellants with the prosecutrix, she was an 18 years school

going girl, I am of the considered opinion that the sentence

awarded to the Appellants by the Trial Court is just and proper and

the same does not call for any interference. The Appellants do not

deserve leniency on the sentence part. Hence, the sentence

awarded to them is also affirmed.

21. Consequently, the appeal is dismissed.

22. The bail bonds of the Appellants are cancelled and they are
12

directed to surrender before the Trial Court or they shall be taken

into custody forthwith for undergoing the remaining part of the

sentence imposed upon them.

23. Record of the Court below be sent back along with a copy of this

judgment forthwith for information and necessary compliance.

Sd/-

(Arvind Singh Chandel)
JUDGE
Gopal

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