HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Appeal No 858 of 2004
1 Shivaram
2 Gyani Ram
...Petitioners
Versus
State of Chhattisgarh
...Respondents
! M r C Jayant Kumar Rao counsel for the appellant No 1 M r N K Mehta counsel for the appellant No 2
^ M r Rakesh Jha Deputy Govt Advocate for the State
CORAM: Honble Shri R N Chandrakar J
Dated: 19/11/2009
: Judgement
J U D G M E N T
Delivered on this 19th day of November 2009
Criminal appeal Us 374 2 of the Code of Criminal Procedure 1973
1. The appellants have preferred this appeal against the
judgment of conviction and order of sentence dated 14-9-
2004 passed by the Special Judge, Ambikapur, District
Sarguja In Special Case No. 80/2002, whereby the
accused/appellants have been convicted under Section 376
(2) (g) of the IPC and sentenced to undergo R.I. for ten
years and to pay fine of Rs.500/- each, in default of
payment of fine to undergo further S.I. for three months.
2. The prosecution case as set out in the First
Information Report (FIR) is that the prosecutrix namely
Kalawati was residing along with her mother in village
Kotagahana in the house of one Jugeshwar Choubey.
On 3-9-2002 she went to the house of Bramhdeo @ Lilu Yadav
(PW/8) to obtain iron press for ironing her clothes. At
the same time, at about 2.00 p.m., the appellants along
with another person came in a Marshal Jeep and seeing her,
stopped the jeep in front of the house of Bramhdeo @ Lilu
Yadav (PW/8). The accused/appellants forcibly dragged
the prosecutrix in the jeep and she cried for help. Hearing
her outcry when Bramhdeo @ Lilu Yadav (PW/8) came out of
his house, the accused/appellants started the jeep and
took the prosecutrix to Behrakhand forest where appellant
No.1 Shivaram forcibly got her down from the jeep and
committed rape on her. The prosecutrix made outcry and
started weeping, hearing which Budhan Korwa, Lilu @
Bhramhdeo and her mother namely Urmila came there. After
the incident the appellants fled away from the spot in the
said jeep. On the same day i.e., on 3-9-2002 at 4.30 p.m.
the prosecutrix lodged the FIR (Ex.P/4) in Police Station,
Rajpur, where the offence was registered against the
appellants and the matter was investigated.
3. During investigation, the prosecutrix and the
appellant No.1 Shivaram were sent for medical examination
vide Ex.P/8 and Ex.P/3 respectively to Government
Hospitals, Rajpur and Ambikapur where Doctors examined
both of them and gave their reports vide Ex.P/4 & P/2.
Investigating Officer seized the clothes of prosecutrix
vide Ex.P/3, broken bangles, one empty sachet of Pan-Parag
etc., from the spot vide Ex.P/10, the offending vehicle
from Noharsai vide Ex.P/1 and prepared the spot map vide
Ex.P/11. The clothes of the prosecutrix were sent to the
Doctor for medical examination vide Ex.P/12.
4. After completing the investigation, charge-sheet was
filed in the competent court who in turn, committed the
case to the trial Court. Learned trial Court framed the
charge under Section 376 (2) (g) of the IPC read with
Section 3 (2)(5) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989 against the
appellants. The appellants abjured the guilt.
5. The prosecution, in order to establish the charge
against the appellants, examined nine witnesses.
Thereafter, the statements of the accused/appellants were
recorded under Section 313 of the Cr.P.C, in which they
denied the circumstances appearing against them and pleaded
their innocence and false implication. The appellants
examined Sukhram (DW/1) and Budhanram (DW/2) in their
defence.
6. After hearing learned counsel for the parties and on
evaluation of the evidence available on record, the trial
Court convicted and sentenced the appellants as noted
above.
7. Learned counsel appearing for the appellants submit
that the judgment of the trial Court is not only perverse,
bad and contrary to law but also is manifestly wrong,
leading to a grave miscarriage of justice. The trial Court
failed to appreciate and scrutinize judicially the facts
and circumstances of the case. In view of the evidence and
material available on record, there is no iota of evidence
against appellant No.2 to connect with this so-called gang
rape. As a matter of fact, this case does not fall within
the ambit of Section 376 (2) (g) of the IPC. The role of
the appellant No.2 has not been disclosed in the case. In
this connection, the trial Court has wrongly held that the
appellant No.2 was playing an active role in the commitment
of rape by appellant No.1 with the prosecutrix. The trial
Court has arbitrarily and blindly believed the
uncorroborated statement of PW-8 Lilu alias Bramhdeo whose
conduct is doubtful. Learned counsel further submit that
the prosecutrix stated in para 20 of her deposition that
she had never gone to the house of Bramhdeo (PW/8) which
creates a great suspicion that she tried to hide the real
fact, therefore, her testimony appears to be unreliable and
untrustworthy. Learned counsel lastly submit that
considering the entire facts, the judgment of conviction
and order of sentence be set aside and the appellants be
acquitted of the charge. Learned counsel in support of
their contentions, placed reliance in Pardeep Kumar vs.
Union Administration, Chandigarh, 2006 STPL (LE) 37389 SC.
8. Per contra, learned counsel appearing for the
respondent/State in support of the impugned judgment of the
lower Court submits that the accused/appellants were
rightly convicted under Section 376 (2) (g) of the IPC as
it was amply proved by the prosecution that both the
appellants acted in concert to commit rape on the
prosecutrix and in furtherance of the common intention,
rape was committed by appellant No.1.
9. I have heard learned counsel for the parties, perused
the record of the trial Court and also the impugned
judgment.
10. In order to appreciate the arguments advanced by
learned counsel for the parties, it would be appropriate to
extract the relevant provision of Section 376 of the IPC
which reads as under:
376. Punishment for rape.-
(2) Whoever,-
(g) commits gang rape, shall be punished with rigorous
imprisonment for a term which shall not be less than ten
years but which may be for life and shall also be liable to
fine:
Provided ……….
Explanation 1.-Where 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”
11. In view of the aforesaid provision and on going
through the record of the trial Court, the evidence of the
prosecutrix Kalawati (PW/5) and Brahmdeo @ Lilu Yadav
(PW/8) are substantial to analyze the factual matrix of
the case with regard to the conduct and role played by the
appellants in commission of the offence.
12. PW/5 Kalawati, prosecutrix stated in her deposition
that on the date of incident when she went to the house of
Brahmdeo @ Lilu Yadav (PW/8) to obtain iron press for
ironing her clothes, the appellants accompanied by another
person came there in a Marshal Jeep and forcibly dragged
her in the Jeep which was driven by the appellant No.2.
She was taken to Berhakhand forest where appellant No.1
dragged her from the jeep and throwing her on the ground,
committed rape on her. She further deposed that despite her
resistance and outcry, the appellant No.1 did not set her
free. The appellant No.1 threatened the prosecutrix to
kill by showing sword if she did not yield to his wish.
She also stated that at the time of committing the offence
by appellant No.1, the appellant No.2 left the place of
occurrence with the offending vehicle to his house where
her mother asked him about her whereabouts to which the
appellant No.2 denied. After the incident, her mother,
Brahmdeo (PW/8) and other persons came to the spot. The
appellant No.2 also came there again with the offending
vehicle in which he took away the appellant No.1 from the
spot. Thereafter, she lodged the report of the incident
vide Ex/P/4 against the appellants in Police Station
Rajpur. Thereafter, she was sent to the Government
Hospital, Rajpur, for medical examination. Her clothes
were seized vide Ex.P/3, her broken bangles were seized
from the spot vide Ex.P/10 and spot map was prepared vide
Ex.P/11 by the Police.
13. The prosecutrix was cross examined at length in which
she denied all most all the suggestions given by the
defence and remained consistent to her statement. She
specifically denied the suggestion that she herself
accompanied the appellants in the Jeep and did not make any
outcry. She also denied the suggestion that she herself
alighted from the jeep and stated that she was dragged from
the jeep by appellant No.1. She specifically admitted that
when she was made to sit in the Jeep, she made outcry and
hearing the same Bramhdeo @ Lilu Yadav came out from the
house. Thus, on anxious evaluation of her deposition, it
is evident that the defence was unable to elicit any
substantial contradictions, omissions or improvements by
which her testimony can be held unreliable or
untrustworthy.
14. The testimony of the prosecutrix is also corroborated
by Brahmdeo (PW/8) who categorically stated in his
deposition that on the date of incident, the prosecutrix
came to his house for obtaining iron press, at that time,
he was taking his lunch. Hearing the outcry of the
prosecutrix, when he came out from the house, he saw that
the appellants were forcibly taking the prosecutrix in a
marshal jeep. Thereafter, he went to the mother of the
prosecutrix and narrated the fact. After some time, the
jeep was found standing near the house of appellant No.2.
The mother of the prosecutrix went there and the appellants
took the jeep towards forest. The appellant No.2 blew horn
and the appellant No.1 rushed to the jeep. Thereafter the
prosecutrix came out from the forest by weeping and
narrated the incident to him and her mother in presence of
some other persons of the village. Thereafter, the report
of the incident was lodged in Police Station, Rajpur. He
admitted the spot map (Ex.P/11), seizure of broken bangles
and empty sachet of Pan-Parag from the spot vide Ex.P/10 as
also the clothes of the prosecutrix vide Ex.P/3. In his
cross examination this witness remained consistent and
unrebutted to the fact that when he came out from the house
hearing the outcry of the prosecutrix, he saw that the
appellants were forcibly taking away the prosecutrix in a
marshal jeep. He categorically stated that he gave this
information to the mother of the prosecutrix and saw the
prosecutrix at the place of incident where she was weeping.
He denied the suggestion that the incident was not narrated
by the prosecutrix in his presence. Thus, the version of
this witness inspires confidence and finds corroboration
with the testimony of the prosecutrix despite there being
some discrepancies not amounting to material contradiction.
15. Hon’ble the Supreme Court in State of H.P. v. Lekh
Raj (2000)1 SCC 247 on the aspect of discrepancy observed
as under:
“Discrepancy has to be
distinguished from contradiction.
Whereas contradiction in the
statement of the witness is fatal
for the case, minor discrepancy or
variance in evidence will not make
the prosecution’s case doubtful.
The normal course of the human
conduct would be that while
narrating a particular incident
there may occur minor
discrepancies, such discrepancies
in law may render credential to the
depositions. Parrot-like statements
are disfavoured by the courts. In
order to ascertain as to whether
the discrepancy pointed out was
minor or not or the same amounted
to contradiction, regard is
required to be had to the
circumstances of the case by
keeping in view the social status
of the witnesses and environment in
which such witness was making the
statement”
16. Learned counsel for the appellants pointing towards
the statement made by the prosecutrix in para 20 of her
deposition tried to discredit the testimony of the
prosecutrix and submitted that she never went to the house
of Brahmdeo (PW/8). The extract of para 20 reads as “eSa
czEgnso ds ?kj dHkh ugha x;h]] blfy;s ml fnu tc ek’kZy thi
mlds ?kj ds lkeus vk;h rks eSa mlds ?kj ugha ?kqlh” On
scrutiny, the meaning of para 20 is found that the
prosecutrix never visited the house of Brahmdeo (PW/8)
before the incident, therefore, on the date of incident
also when the Marshal Jeep came in front of the house of
Brahmdeo, she did not enter his house. The statement of
the prosecutrix is to be viewed in the context of the
statement of Brahmdeo who categorically stated in para 27
to 29 of his deposition that it was for the first time
when the prosecutrix came to his house for obtaining iron
press on the date of incident and was standing out of the
house. Thus, there is no force in the contention of learned
counsel for the appellants and it appears that the gist of
the deposition of the prosecutrix has wrongly been
interpreted only with a view to discredit the testimony of
the prosecutrix. The interpretation/translation of any
sentence or paragraph should be based on its full context.
It would not be apposite to pick up and interpret only half
of the sentence which goes in favour of the appellants,
leaving the other portion untouched.
17. It is evident that the forcible intercourse on the
prosecutrix is also established by the evidence of Doctor
Smt. Kiran Bhajgawali (PW/4) who examined the prosecutrix
on 4-9-2002. She found multiple abrasion marks on hips and
waists of the prosecutrix as also a small tear at 6′ O
clock position in her hymen. On examination by finger, the
prosecutrix felt pain and tenderness. The doctor gave her
report vide Ex.P/4 and opined that the recent intercourse
was performed on her and the injuries were caused within 12
to 24 hours by hard and blunt object. In her cross
examination, the Doctor Smt. Kiran Bhagwali denied the
suggestion that the hymen of the prosecutrix was old torn
and she was accustomed to sexual intercourse. Further,
appellant No.1 was examined by Doctor B.S. Sangar (PW/2)
vide Ex.P/2 who found him to be potent. Thus, it cannot be
ruled out that the forcible intercourse was not performed
by the appellant No.1 with the prosecutrix. The clothes of
the prosecutrix were advised to send for chemical analysis
by the Doctor Smt. Kiran Bhajgawali (PW/4) but the FSL
report is not available on record. It is made clear that
in view of the consistent and credible evidence of the
prosecutrix which is corroborated by Brahmdeo (PW/8), it
need not be further corroborated by any medical evidence.
Apart from this, injuries were found on the body of the
prosecutrix which goes to show the only fact that she was
forcibly raped against her will.
18. Hon’ble the Supreme Court in the matter of Sri Narayan
Saha and another vs. State of Tripura reported in (2004)
7 SCC 775 on the aspect of corroboration observed as
under.
“The prosecutrix of the sex offence
cannot be put on a par with
accomplice. She is in fact, a victim
of the crime and her evidence must
receive the same weight as is
attached to an injured witness. It
can be accepted without
corroboration, if the court, keeping
in mind that it is dealing with the
evidence of a person who is
interested in the outcome of the
charge leveled by her, is satisfied
that it can act on her evidence”.
19. Further, Hon’ble the Supreme Court in the matter of
State of M.P. vs. Dayal Sahu, reported in 2005 AIR SCW
4839, observed as under:
“Once the statement of prosecutrix
inspires confidence and accepted by
the courts as such, conviction can be
passed only on the solitary evidence
of the prosecutrix and no
corroboration would be required
unless there are compelling reasons
which necessitate the courts for
corroboration of her statement.
Corroboration of testimony of the
prosecutrix as a condition for
judicial reliance is not a
requirement of law, but a guidance of
prudence under the given facts and
circumstances”.
20. So far as the involvement of the appellant No.2 in
crime in question is concerned, it is clear from the
evidence of the prosecutrix (PW/5) and Brahmdeo (PW/8) that
he was present with the appellant No.1 right from beginning
to end. It is evident that the offending vehicle was
driven by appellant No.2 in which the prosecutrix was
boarded by appellant No.1 and taken away to the forest
where the prosecutrix was raped by appellant No.1. It is
also evident that during commission of offence by appellant
No.1, the jeep was brought by appellant No.2 to his house
where he met the mother of the prosecutrix and stated
nothing about whereabouts of her daughter. Thereafter, he
again went to the place of occurrence with the offending
vehicle and took away the appellant No.1 after commission
of the offence. Thus, the conduct of the appellant No.2
goes to show that he had the common intention to
participate in the crime and acted in furtherance of that
common intention just to facilitate the appellant No.1 in
commission of the crime in question with the prosecutrix.
21. Hon’ble the Supreme Court in Ashok Kumar vs. State of
Haryana (2003) 2 SCC 143 on the aspect of common intention
observed as under:
“In order to establish an offence
under Section 376(2)(g) IPC, read
with Explanation I thereto, the
prosecution must adduce evidence to
indicate that more than one accused
had acted in concert and in such an
event, if rape had been committed
by even one, all the accused will
be guilty irrespective of the fact
that she had been raped by one or
more of them and it is not
necessary for the prosecution to
adduce evidence of a completed act
of rape by each one of the accused.
In other words, this provision
embodies a principle of joint
liability and the essence of that
liability is the existence of
common intention; that common
intention presupposes prior concert
which may be determined from the
conduct of offenders revealed
during the course of action and it
could arise and be formed suddenly,
but, there must be meeting of
minds. It is not enough to have the
same intention independently of
each of the offenders. In such
cases, there must be criminal
sharing marking out a certain
measure of jointness in the
commission of offence”.
22. Further, Hon’ble the Supreme Court in Priya Patel v.
State of M.P.,(2006) 6 SCC 263 observed as under:
“By operation of the deeming
provision, a person who has not
actually committed rape is deemed
to have committed rape even if only
one of the group in furtherance of
the common intention has committed
rape. “Common intention” is dealt
with in Section 34 IPC and provides
that when a criminal act is done by
several persons in furtherance of
the common intention of all, each
of such persons is liable for that
act in the same manner as if it was
done by him alone. “Common
intention” denotes action in
concert and necessarily postulates
a pre-arranged plan, a prior
meeting of minds and an element of
participation in action. The acts
may be different and vary in
character, but must be actuated by
the same common intention, which is
different from the same intention
or similar intention. The sine qua
non for bringing in application of
Section 34 IPC is that the act must
be done in furtherance of the
common intention to do a criminal
act. The expression “in furtherance
of their common intention” as
appearing in the Explanation to
Section 376(2) relates to the
intention to commit rape”.
23. It is pertinent to mention here that the case law
cited by the counsel for the appellants is not applicable
to the facts of the present case as the facts are
distinguishable and the same was a case of clear
exoneration of the appellant and the prosecutrix had
changed her version before the court from time to time but
in the present case the prosecutrix remained consistent to
her version which is duly corroborated by Brahmdeo (PW/8)
though not required.
24. Taking into consideration over all evidence available
on record and applying the well settled principles of law
laid down by Hon’ble the Supreme Court in the
aforementioned judgments, I am of the considered opinion
that the judgment of the trial Court does not suffer from
any illegality, infirmity, or irregularity warranting
interference in appeal. The court below has rightly placed
reliance on the statement of the witnesses, specifically
on the statement of prosecutrix which is duly corroborated
by Brahmdeo (PW/8) while convicting and sentencing the
accused/appellants as mentioned above.
25. Accordingly, the appeal being devoid of merit deserves
to be dismissed and is accordingly dismissed.
JUDGE