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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
(Judgment closed on 11.09.2018)
(Judgment delivered on 20.09.2018)

CRA No. 938 of 2013
1. Rupesh Kumar aged about 25 years, son of Shiv Kumar
Jaiswal, R/o Village Indra Colony, Fokatpara, PS Kasdol,
District Baloda Bazar, CG

— Appellant
Versus
1. State of Chhattisgarh through SHO Police Station
Kasdol, District Baloda Bazar, CG
— Respondent

CRA No. 1009 of 2013

1. Ashok Kumar son of Sadaram Sahu, aged about 19
years, R/o Indira Colony, Phokatpara, PS Kasdol, Civil
Revenue District Baloda Bazar, CG
— Appellant
Versus

1. State of Chhattisgarh through SHO Police Station
Kasdol, District Baloda Bazar, CG
— Respondent
CRA No. 1234 of 2013
1. Krishna Kadra son of Shiv Kadra, aged about 22 years

2. Rajeshwar alias Lalu son of Ganesh Ram Sahu, aged
about 22 years,

Both R/o Indira Colony, Phokatpara, PS Kasdol, Civil
Revenue District Baloda Bazar, CG

— Appellants
Versus
1. State of Chhattisgarh through SHO Police Station
Kasdol, District Baloda Bazar, CG
— Respondent
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AND
CRA No. 1074 Of 2018
1. Smt. Sonkunwar W/o Govind Das, aged about 45 years,
R/o Indira Colony, Fokatpara, PS Kasdol, Civil Revenue
District Baloda Bazar, CG
Versus
1. State of Chhattisgarh through SHO Police Station
Kasdol, District Baloda Bazar, CG

For Appellants : Shri Adil Minhaj, Shri Hemant
Gupta Shri C.R. Sahu,
Advocates
For Respondent/State : Shri Anil Pillay, Dy. AG

Hon’ble Shri Justice Pritinker Diwaker
Hon’ble Smt. Justice Rajani Dubey

CAV Judgment

As the aforesaid four Criminal Appeals arise out of the

same judgment dated 19.09.2013 passed by Special Judge

(Atrocities) Raipur in Special Sessions Trial No. 45/2012

convicting and sentencing the accused/appellants as detailed

below, they are disposed by a common judgment.

Accused Conviction Sentence
Rupesh Kumar, Ashok U/s 376 (2) (g) IPC RI for 20 years with
Kumar Krishna fine of Rs. 100/- plus
Kadra default stipulation
Smt. Sonkunwar U/s 376 (2) (g) read RI for 20 years with
with 109 and 114 IPC fine of Rs. 100/- plus
default stipulation
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2. Facts

of the case in brief are that on 01.07.2012 at about

8.15 PM FIR (Ex.P-11) was lodged by the prosecutrix (PW-5)

then aged about 15 years alleging that accused Sonkunwar

was kept by her father as wife. 4-5 days prior to the date of

incident the prosecutrix was dropped by her father at Kasdol

in the house of accused Sonkunwar. On the date of incident at

about 5 PM accused Rupesh Kumar, Ashok Kumar, Krishna

Kadra and Rajeshwar alias Lalu came there, consumed liquor

with accused Sonkunwar and then committed forcible sexual

intercourse with her. Based on this FIR, offences under

Sections 376 (2) (g) IPC and 3 (1) (xii) of the Scheduled Caste

and Scheduled Tribe (Prevention of Atrocities) Act (for short

the “Special Act”) were registered against Rupesh Kumar,

Ashok Kumar, Krishna Kadra and Rajeshwar alias Lalu.

Prosecutrix was medically examined on 02.07.2012 by Dr.

Pramila Toppo (PW-11) who gave her report Ex. P-27. Accused

Rupesh Kumar, Ashok Kumar, Krishna Kadra and Rajeshwar

alias Lalu were also medically examined by Dr. Rakesh Kumar

(PW-10) vide reports Ex. P-19 to Ex. P-22 stating that they all

were capable of performing sexual intercourse. Court below

framed the charge against accused Rupesh Kumar, Ashok

Kumar, Krishna Kadra and Rajeshwar alias Lalu under sections

376 (2) (g) IPC and 3 (2) (v) and 3 (1) (xii) of the Special Act.

Against accused Sonkunwar the charge framed was u/s

109/114 IPC only.

3. In order to prove its case the prosecution has examined

14 witnesses. Statements of the accused/appellants were also
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recorded under Section 313 of the Code of Criminal Procedure

in which they denied their guilt and pleaded innocence and

false implication in the case.

4. After hearing the parties the Court below has convicted

and sentenced the accused/appellants as mentioned in

paragraph No. 1 of the judgment impugned.

5. Counsel for the accused/appellants submit as under:

(i) That the prosecutrix has not supported the case of the

prosecution as she has categorically stated that on being

asked by the Police she named the accused/appellants.

(ii) That the prosecutrix has further stated that she was not

aware as to who committed the offence alleged.

(iii) That under no circumstance, Sonkunwar could be

convicted under Section 376 (2) (g) IPC.

(iv) That the accused/appellants are in jail since 01.07.2010

and therefore they be set free by setting aside their conviction

and sentence.

6. State counsel however supports the judgment impugned

and submits that the findings recorded by the Court below

convicting and sentencing he accused/appellants as detailed

above are in accordance with law and there is no illegality or

infirmity in the same. He vehemently argued that the

prosecutrix appears to be fully reliable and considering the FIR

and the medical report, accused/appellants have rightly been

convicted for committing forcible sexual intercourse on the
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minor prosecutrix.

7. Prosecutrix (PW-5) has stated that she knew the

accused/appellants herein as they all belonged to her caste.

According to this witness, though she was resident of Baloda

Bazar but her father had left her at Kasdol in the house of

accused Sonkunwar. On the date of incident, her father had

gone to Raipur and after accused Sonkunwar had gone asleep

after taking liquor, accused/appellants Rupesh Kumar, Ashok

Kumar, Krishna Kadra and Rajeshwar alias Lalu already

present there removed her clothes, threw her on the ground

and committed forcible sexual intercourse with her one after

the other. This witness has stated that the house where the

incident took place was surrounded by many other houses and

the voice raised in the neighbouring houses could be heard in

the house where the incident took place. She has stated that

while lodging the report she had informed the police that she

did not know the accused/appellants and that half an hour

after lodging the report the police had brought them to the

police station and told her that they knew as to who

committed the offence. According to her, after bringing four

accused/appellants the police people asked her about their

identity but she told them that as it was dark at the time of

incident, she could not identify them. According to her, on

being told by the police that it is these four persons who

committed bad work with her, she took their names

accordingly. Further, on being asked by the police as to who

the accused Krishna was, she pointed at accused Ashok. She
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has further stated that while lodging the report she did not

disclose the names of accused persons who were involved in

the incident. She has reiterated that she was not aware as to

who committed bad work with her. Dr. Pramila Toppo (PW-11)

is the witness who medically examined the prosecutrix and

gave her report Ex. P-27 stating that on the basis of symptoms

noticed by her, she was of the opinion that the prosecutrix

was recently subjected to repeated sexual intercourse within

two days therefrom. Domendra Singh alias Dinesh (PW-2) –

brother of the prosecutrix has stated that when he asked the

prosecutrix as to who subjected her to rape, she expressed

her ignorance and told him that on account of being dark at

the relevant time, she could not identify them. Pravin Kumar

(PW-6) – another brother of the prosecutrix has stated that his

sister (prosecutrix) did not disclose the names of the culprits.

O.P. Sharma (PW-14) has however supported the case of the

prosecution.

17. We have heard counsel for the parties and gone through

the evidence of the witnesses with utmost care. Though

medical evidence is suggestive of the recent repeated sexual

intercourse with the prosecutrix yet if her evidence is read as

a whole, it emerges that she herself was not sure as to by

whom she was sexually exploited. Her deposition shows that

because of darkness prevailing at the relevant time she was

not aware as to who was the real culprit and that she had

taken the names of the accused/appellants Rupesh Kumar,
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Ashok Kumar, Krishna Kadra and Rajeshwar alias Lalu on

being so asked by the police. Her deposition further shows

that on being asked by the police as to who the accused

Krishna was, she pointed at accused Ashok. According to the

prosecutrix, half an hour after lodging the report the police

had brought the accused/appellants to the police station and

told her that they knew as to who committed the offence and

for that only she took their names as accused. Even brothers

of the prosecutrix being PW-2 and PW-6 have categorically

stated that when they asked the prosecutrix as to who

subjected her to rape, expressing ignorance she told them

that on account of being dark at the relevant time, she could

not see or identify them. Since the prosecution has utterly

failed to prove its case beyond reasonable doubt as to who

subjected the prosecutrix to forcible sexual intercourse. This

being the position, accused Sonkunwar in whose house the

incident is said to have taken place is also out of this ugly

scene and no offence is made out against her. Her evidence

also shows that the house where the incident took place was

surrounded by many other houses and the voice raised at one

end could be heard at the other, but surprisingly the incident

went un-noticed even by the neighboures which also creates a

strong doubt in the mind of this Court as to any such

occurrence. The Court below appears to have totally

misdirected itself in convicting the accused/appellants for

make the prosecutrix the victim of their lust even in the

absence of any such evidence.

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8. Accordingly, the appeals are allowed, the judgment

impugned is set aside and the accused/appellants are

acquitted of the charge levelled against them. They being in

jail are directed to be released forthwith if not required in any

other case.

Sd/- Sd/-
(Pritinker Diwaker) (Rajani Dubey)
Judge Judge
Jyotishi