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
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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
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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
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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
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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
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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
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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).
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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
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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
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(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
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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
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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