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Virendra Kumar And Ors vs State Of Chhattisgarh 3 … on 12 October, 2018

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HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 818 of 2012

Reserved on : 23.08.2018

Delivered on : 12.10.2018

1. Virendra Kumar, S/o Valmiki Halwa, Aged About 18 Years, R/o
Village- Medgaon, Deharitola P.S.-Mannpur, District-
Rajnandgaon (C.G.).
2. Yogesh Kumar, S/o Parasram Gond, Aged About 20 Years,
R/o Village – Korramtola, P.S. Manpur, District- Rajnandgaon
(C.G.)
3. Kamlesh Kumar, S/o Umediram Halwa, Aged About 19 Years,
R/o Village – Medgaon, Deharitola, P.S. – Mannpur, District –
Rajnandgaon (C.G.)
—- Appellants
Versus
State of Chhattisgarh, Through P.S.- Mannpur, District- Rajnandgaon
(C.G.)
—- Respondent
——————————————————————————————-

For Appellants : Mr. H.S. Ahluwalia, Advocate.
For State/respondent : Ms. K. Tripti Rao, Panel Lawyer.

——————————————————————————————-

Hon’ble Shri Justice Ram Prasanna Sharma

CAV JUDGMENT

1. This appeal is preferred under Section 374(2) of the Code of

Criminal Procedure, 1973 against judgment dated 22.08.2012

passed by First Additional Sessions Judge, Rajnandgaon

(C.G.) in Session Trial No. 67/2011, wherein the said court

convicted all the three appellants for commission of offence

under Sections 376(2)(g) 506(Part-II) of IPC, 1860 and

sentenced to R.I. for 10 years and fine of Rs. 1000/- and R.I.

for 5 years and fine of Rs. 500/- respectively each with further

default stipulations.

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2. As per the prosecution case, prosecutrix is (PW-2). It is

alleged that on 04.05.2011 prosecutrix along with her friends

had gone to other village- Deharitola to attend marriage

function and when she was returning from the function at

about 12.00 p.m. in night, all the accused persons dragged

her towards forest where appellant- Virendra Kumar

committed rape on her and rest of two appellants were in

group and acted in furtherance of their common intention to

commit rape. After rape by Virendra Kumar, appellant- Yogesh

Kumar committed rape on her. Matter was reported on next

day and investigated thereof. Appellants were charge-sheeted

and after completion of trial, the trial court convicted as

mentioned above.

3. To substantiate the charge, the prosecution examined as

many as 7 witnesses. Prosecutrix (PW-2) deposed that she

had gone to village- Deharitola in a marriage function and

while she was returning from the said marriage function at

about 12.00 to 12.30 in midnight, all the three appellants

dragged her towards forest and threatened her in the forest.

Appellant- Virendra Kumar committed rape on her and

appellant- Yogesh Kumar and Kamlesh Kumar were sitting

near tree at nearby place. While she was returning after the

rape by Virendra Kumar, appellant- Yogesh Kumar committed

rape on her.

4. Version of this witness is supported by version of Chhatter

Singh (PW-3) who is father of the prosecutrix, who has
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informed by his son-in-law namely Mahendra Tekam (PW-5)

that someone abducted prosecutrix while returning from the

function. The prosecutrix informed him that all the three

appellants dragged her towards forest and appellant-

Virenddra Kumar Yogesh Kumar committed rape on her,

while appellant- Kamlesh who was in group of appellants

assisted them in commission of rape. Savita (PW-4) also

deposed on the same line. Mahendra Tekam (PW-5) also

deposed on same line and he deposed that all the three

appellants have confessed their guilt. All theses witness were

subjected to searching cross-examination, but nothing could

be elicited in favour of the defence.

5. Shirt and underwear of the prosecutrix were seized and when

prosecutrix was examined by Dr. Seema Thakur (PW-6), she

prepared slide of vaginal slope of prosecutrix and seized

underwear shirts and the same was sent for chemical

examination. As per report of chemical examination (Ex.

P/25), semen was found in all the articles. From evidence of

all the witnesses, it is clear that the prosecutrix is student of

class-IX and she is unmarried, therefore, report of forensic

laboratory confirmed rape on prosecutrix.

6. Incident took place in the midnight of 4th May, 2011 and matter

was reported next day in police station- Mannpur, which is at

distance to 9 km. from village- Nedgaon to the place of

incident of forest near village- Deharitola, in which all the three

appellants have been named as culprit.

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7. Learned counsel for the appellants submits that appellant-

Kamlesh Kumar did not commit intercourse with her and as

per version of the prosecutrix, he was sitting near bush,

therefore, charges against appellant- Kamlesh Kumar is not

established. He placed reliance in the matter of Dilip

another Vs. State of M.P., reported in 2001 4 Crimes(SC)

105; 2001 0 CrLJ 4721, Tameezuddin @ Tammu Vs. State

of (NCT) of Delhi reported in 2009 (4) Crimes(SC) 127,

Narayan S/o Umrao Vs. State of Madhya Pradesh reported

in 2002 4 MPHT 190, Bharwada Bhoginbhai Hirjibhai Vs.

State of Gujrat reported in 1983 0 AIR(SC) 753, Bablu @

Uday Vs. State of Chhattisgarh reported in 2006 3 CGLJ

405 and Hem Raj S/o Moti Ram Vs. State of Haryana

reported in 2014 2 SCC 395.

8. Section 376 of IPC is punishable clause for offence of rape

and in explanation (1) of the said Section, it is mentioned that

a woman is raped by one or more in a group of persons acting

in furtherance of their common intention, each of the persons

shall be deemed to have committed gang rape within the

meaning of this sub-section. All the three appellants were in

group when they dragged the prosecutrix towards forest and

from evidence of the prosecutrix, appellant- Virendra Kumar

committed rape on her, when she was returning after the

incident by Virendra Kumar, appellant- Yogesh Kumar

committed rape on her. Appellant- Kamlesh Kumar was in

group while they dragged the prosecutrix toward forest,
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therefore, in absence of any explanation from appellant-

Kamlesh Kumar, his participation as a member of said group,

is established and his assistance of other co-accused is also

established which shows common intention of all the three

appellants.

9. Learned counsel for the appellants submits that the appellant-

Kamlesh Kumar has no intention to commit rape on

prosecutrix with other co-accused, therefore, charge under

Section 376(2)(g) of IPC is not made out against him. He

further submits that in FIR it is mentioned that appellant-

Yogesh Kumar was returning from the place of incident before

commission of rape, therefore, his involvement in commission

of crime is not established.

10. In view of this Court, when appellant- Yogesh Kumar

participated in dragging towards forest is established, his

participation as member of group is also established. From

evidence of the prosecutrix, it is established that while she

was returning from forest, appellant- Yogesh Kumar

committed rape on her which shows guilty mind on the part of

this appellant and he initially acted in furtherance of common

intention, therefore, he cannot escape from criminal liability for

the said offence.

11. It is contended on behalf of the appellants that appellant-

Yogesh Kumar left the prosecutrix after the incident upto her

kitchen garden which shows that it is a case of consent and it

is not against her will. In view of this Court, when this
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appellant dragged the prosecutrix with other co-accused

towards forest where one of the appellant- Virendra Kumar

committed rape on her, his participation in furtherance of

common intention is established. If, he left the prosecutrix

after commission of offence, the same is not sufficient to show

his innocence, therefore, he is liable for his criminal act.

Considering all the facts and material on record, this court is

of the view that the case laws cited by learned counsel for the

appellants, are clearly distinguishable from the facts and

circumstances of the present case.

12. Rape by group of persons acting in furtherance of common

intention is an offence under Section 376(2)(g) of IPC for

which the trial court convicted all the three appellants and this

Court has no reason to record contrary finding. Conviction of

all the appellants for commission of rape under Section 376(2)

(g) is hereby affirmed.

13. So far as offence under Section 506 (Part-II) of IPC is

concerned, the prosecutrix (PW-2) deposed that the

appellants had said that when she will cry then they will kill

her, but from her evidence, it is not clear as to who really

uttered this words. From her evidence, it is also not clear that

any of the appellant was determined to execute the threat. For

attracting Section 506 (Part-II). It has to be established that

anyone gave the threat was determined to execute threat on

spot, but the evidence on this part is lacking. Any words

uttered without knowing its consequences is mere fury which
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has no substance, therefore, offence under Section 506(Part-

II) of IPC is not established. Conviction and sentence under

Section 506 (Part-II) is liable to be and is hereby set aside.

They are acquitted of the charge under Section 506 (Part-II) of

IPC.

14. Accordingly, the appeal is partly allowed. Conviction and

sentence passed by the trial court against all the appellants

for commission of offence under Section 376 (2)(g) of IPC is

maintained. The trial court has awarded minimum sentence,

less than minimum cannot be awarded. Sentence part is also

affirmed.

15. Appellant- Virendra Kumar and Yogesh Kumar are reported to

be in jail, therefore, no order for their arrest etc. is required.

Appellant- Kamlesh Kumar is reported to be on bail and his

bail bonds are cancelled. The trial court will prepare super-

session warrant and issue warrant of arrest against appellant-

Kamlesh Kumar and after his arrest, he be sent back to the

concerned jail for serving out the remaining part of the jail

sentence. The trial court shall submit compliance report on or

before 30th January, 2019.

Sd/-

(Ram Prasanna Sharma)
Judge

Arun

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