Appeal against conviction for gang rape and criminal intimidation. The court upheld the conviction, holding the prosecutrix's testimony credible and corroborated by forensic evidence of spermatozoa, and that absence of medical corroboration and the delay in lodging the FIR did not discredit the prosecution case.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No.513 of 2004
All are residents of Village-Belargaon, P. S. Sihawa, District Dhamtari (CG)
---- Appellants
(Accused persons in jail)
Versus
---- Respondent
For Appellants : Shri Avinash K. Mishra, Advocate For Respondent/State : Shri Suryakant Mishra, Panel Lawyer
D.B.: Hon'ble Shri Justice Manindra Mohan Shrivastava Hon'ble Smt. Justice Rajani Dubey
CAV Judgment
Per Manindra Mohan Shrivastava, J.
15/07/2019
order of sentence dated 30-04-2004 passed by the Additional Sessions Judge, Dhamtari in Sessions Trial No.231/2002, whereby and whereunder the appellants have been held guilty for commission of offence under Section 376(2)(g) and 506-B of IPC and sentenced them, as described below-
SectionRigorous Imprisonment for 12 years and fine of 376(2)(g) IPC Rs.2000/-, in default of payment of fine, additional R.I. for 1 year.
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506-B of IPC Rigorous imprisonment of five years and fine of Rs.1,000/-, in default of payment of fine, additional rigorous imprisonment for six months.
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sheet, the appellants were charged of having committed offence of gang rape on the prosecutrix, which was denied. As far as appellants-Kushal and Kamlesh Yadav are concerned, it was alleged that they committed rape on the prosecutrix, whereas as against accused-Dilip, it was alleged that he aided other accused in the commission of offence of rape. The appellants having abjured guilt, were subjected to trial. In order to prove its case, the prosecution examined as many as 16 witnesses which included Prosecutrix, PW-3 and her friend Basanti, PW-13, who was also allegedly subjected to rape by Kamlesh and three other persons. In addition, the prosecution also examined mother and father of Sarita (prosecutrix) and the doctor, who had medically examined the prosecutrix. The Court also examined, as a Court witness, Senior Scientific Officer and Assistant Chemical Examiner, State Forensic Science Laboratory, Raipur. The appellants were examined under Section 313 of Cr.P.C. in respect of incriminating evidence and circumstances appearing against them in the evidence led by the prosecution. The appellants denied having committed any offence and stated that the appellants were falsely implicated. No defence witness was examined.
Learned trial Court, relying upon the evidence led by the prosecution, particularly the evidence of the prosecutrix that two of the appellants committed rape on her and third one i.e. Dilip aided in commission of offence of rape, held the appellants guilty of commission of offence of gang rape as also administering threat of life and they were accordingly sentenced, as described above, giving rise to this appeal.
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prosecutrix, not only suffers from material contradictions and omissions, but also inherent improbability. Her allegation that she was subjected to rape by two of the appellants one after the other in quick succession, is not supported from the medical evidence. Dr. Abha Rani Singh, PW-2, who has examined the private parts of the prosecutrix, has clearly stated that hymen of the prosecutrix was found intact and vagina hardly allowed penetration of 1/4th of the index finger. He would argue that even according to the prosecution, the prosecutrix was approximately 16 years of age and had there been slightest penetration of male genital organ, some kind of injury would have been found. He further submits that according to the prosecution, it was a case of gang rape and the prosecutrix has stated that two of the appellants have committed rape on her one after the other without any time gap, in such a situation, it is wholly improbable that no swelling or redness would be found in the vagina of the prosecutrix. According to him, in such an event of gang rape with the girl of such an age by the appellants, who are grown up boys, hymen could not have remained intact. Further argument of learned counsel for the appellants is that according to the prosecutrix, she was dragged towards the field and made to lie on the uneven ground of agriculture field and subjected to rape, but no injury was found on any other part of the body of the prosecutrix including her back. Moreover, it is argued that the prosecutrix has not came out with the case that she offered resistance or called for any help. He would also argue that the conduct of the prosecutrix in not disclosing anything to Indal Sahu, PW-12, whom she met while coming back along with her friend Basanti, immediately after the incident, near the agriculture field, renders the prosecution story furthermore doubtful. Learned counsel for the appellants argued that the plausible and possible defence, as emerging from the evidence led by the prosecution including that of Indal Sahu, PW-12 and Domar Singh, PW-12 that
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both the prosecutrix, Sarita, PW-3 and her friend Basanti, PW-13 went towards the agriculture field late in the evening, on a whistle call given to them probably by their lovers and when the appellants and other boys of the village (appellants of connected Criminal Appeal No.512 of 2004), chased them and caught them in the field, their lovers ran away and the appellants caught the two girls including the prosecutrix at the spot, they were scolded and were brought back to their house. When this is became open in the village, the prosecutrix and her friend Basanti, PW-13 made false allegation of commission of offence of rape on the appellants to save themselves. Therefore, the appellants are entitled to be given benefit of doubt 4. On the other hand, learned State counsel would support the impugned judgment of conviction and order of sentence by submitting that the conviction of the present appellants is founded on strong and firm evidence of prosecutrix, Sarita, PW-3. The prosecutrix, who has clearly stated that while she along with her friend Basanti, PW-13 were going towards the house of her friend Bhuvneshwari for attending the function, one of them were caught by other boys (appellants in the connected Criminal Appeal No.512/2004), she was caught hold of by the present appellants and taken towards the agriculture field and she was subjected to rape by the appellants Kushalram and Kamlesh one after the other. He would further argue that the prosecutrix has clearly stated that appellant-Dilip, though did not commit any offence, he aided in commission of offence as he watched over the public moment, so that, if anyone comes, the situation may be handled. He would further argue that the prosecutrix-Sarita has remained firm on her statement and whatever contradictions and omissions elicited, are not very material. On all material aspects, she has remained firm and coherent. He would further argue that testimony of the prosecutrix-Sarita, PW-3 is fully corroborated from the evidence of another victim, Basanti, PW-13,
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who has also stated that when she along with the prosecutrix were going, they were surrounded and overpowered by a group of boys and two out of them namely Kushal Gond and Kamlesh Yadav committed rape on the prosecutrixSarita. Her friend Basanti, PW-13 was also subjected to rape by another group of assailants. She also informed regarding commission of offence of rape on her. The prosecutrix-Sarita and her friend Basanti were surrounded by number of persons and they were also threatened. In these circumstances, the prosecutrix being girl of tender age were completely overpowered and made to surrender. She has not stated that she received any injury, therefore, only on the ground that no injury was found on any part of the body, her evidence of being subjected to rape, could not be doubted. Further submission of learned State counsel is that though, the private parts of the prosecutrix have not been found to be injured and hymen was found to be intact, the evidence of Dr. Abha Rani Singh, PW-2 supports the evidence of the prosecutrix, because Dr. Abha Rani Singh, PW-2 has stated that partial penetration was possible. He would argue that in any case, if the evidence of the prosecutrix is found to be reliable, law does not require that it must necessarily be corroborated from the medical evidence and in all cases, absence of injury would not render testimony of prosecutrix doubtful. He would further argue that the clothes of the prosecutrix and the appellants have been found to be stained with seminal stains and even the vaginal swab collected from the vagina of the prosecutrix were found containing spermatozoa, which corroborates the prosecution story. As far as defence is concerned, learned State counsel argued that the defence of the appellants is improbable and only an attempt to somehow defend them. No clinching evidence has been led by the defence nor emerged from the evidence of the prosecution witnesses to render probable and plausible defence story.
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have perused the records of the case.
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three other persons in Sessions Trial No.217 of 2002, wherein four accused including Kamlesh have been held guilty of commission of offence of rape against Basanti. Connected Criminal Appeal No.512 of 2004 arises out of conviction in the aforesaid case.
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and attempted to strangulate. She further deposed that on the next day in the morning, she went to the police station-Sihawa along with her mother and father, Basanti and her parents, where she disclosed the incident, on which, FIR was lodged. She has been subjected to detailed cross-examination. Certain contradictions and omissions regarding she having been threatened, abused and slapped by Kushal and the reason as to why she diverted towards agriculture field and that after the incident, six boys brought her and Basanti and on the main road, they abused and threatened the prosecutrix not to disclose the incident, having not been stated in the case diary statement, Ex.D-1 and FIR, Ex.P-6, have been elicited. However, on the material aspect, particulars regarding she and Basanti having been intercepted in the agriculture field, gagging of mouth, catching hold of her and taking inside the field and then subjected to rape firstly by Kushal and then by Kamlesh and the manner, in which, she was subjected to rape, have remained uncontroverted and no material contradiction and omission in that regard could be elicited in her examination.
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she and her friend Sarita stated that they will call for help, they were threatened by stating that they would be killed. In her testimony, Basanti, PW-13 has further deposed that Sarita was subjected to rape by Kushal and Kamlesh, as informed to her by Sarita. She has stated that when she was subjected to rape by four persons namely Kailash, Bhushan, Phagnu and Kamlesh one after the other. Thereafter, while she and her friend-Sarita were returning, they met Indal Sahu, who was surrounded by Kailash and others, they were threatened by Kushal not to disclose the incident, thereafter, she and her friend-Sarita went towards the house of Sarita. After reaching the house of Sarita, she narrated the whole incident to the parents of Sarita. After that, Maikuram, father of Sarita left the house and went towards the house of Kushal and came out by stating that on the way, he was surrounded by Kushal and her mother came and saved her father from attack. Thereafter, father and mother of Sarita came back to their house along with Kushal and others. She deposed that Kushal had slapped Sarita. Thereafter, quarrel took place between the father of Sarita, Maikuram and Bhushan. Her parents were also called and they were also informed regarding the incident. From there, they went to the house of Kotwar and he was also informed about the incident. Thereafter, they went to the house of UpSarpanch, Domar Singh, who also enquired about the incident. Domar Singh called accused-Kushal and others along with their fathers. Thereafter, in presence of all of them, incident was disclosed and statement was recorded. She further deposed that Domar Singh suggested to compromise the dispute, but the aggrieved party was not agreeable and therefore, they lodged report in the Police Station Sihawa. In her cross-examination, certain omissions have been elicited regarding the fact of they (Basanti herself and Sarita-the prosecutrix) having been intercepted by the boys in intoxicated condition, due to which, she and Sarita diverted the way by crossing through the field and the
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details regarding as to how Sarita was subjected to rape, threat administered to her, has been elicited. Therefore, there appears to be some contradictions with regard to what happened between Maikuram and the accused after the incident was disclosed, have been elicited. However, as far as her statement on material particulars that while going towards the house of Bhuneshwari along with her friend Sarita, crossing through the agriculture field, both of them were intercepted by the appellants and other persons and taken towards different directions by different persons and Sarita was taken by the present appellants, has remained firm. Moreover, her evidence that while returning to the house, after the incident, met Indal Sahu as also evidence regarding narrating details of the incident after reaching the house of Sarita, not only have remained intact, but also corroborates the evidence of the prosecutrix-Sarita, PW-3, in all material particulars.
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statement, Ex.D-2. She has also admitted suggestion that in the house of UpSarpanch, Domar Singh, Sarita had disclosed that she was teased. Similar is the evidence of Maiku Ram, PW-5, father of Sarita. He also states that Sarita disclosed that Kushal and others have committed rape. Rest of the story of arrival of the parents of Basanti, meeting with Kotwar and then approaching the Sarpanch-Domar Singh are similar, as stated by his wife-Munni Bai, PW-4. 11. Indal Sinha, PW-6, stated in his evidence that mother of Sarita disclosed that Kushal, Kamlesh and Kailash had committed rape. Sarita and Basanti both of them also disclosed that they were subjected to rape. In his crossexamination, he admits that in the house of Domar Singh, Sarita and Basanti disclosed that the appellants have committed the act of teasing. 12. Ram Bai, PW-7 has also stated that when she and her husband went to the house of Sarita, they were told by Munni Bai and Maiku Ram that Sarita and Basanti have been subjected to rape. 13. Indal Sahu, PW-12 has deposed that on the date of incident, two girls namely Sarita and Basanti came to his house enquiring about liquor by stating that relatives have come and thereafter, both the girls went towards the field and he heard whistles. He further deposed that on the same date, when he was sitting in front of his house, he saw certain boys running away. Thereafter, he proceeded towards the field to respond to the call of nature, on way, some boys were seen coming back with the girls and Kushal told that the girls had gone towards the field and they are being taken to their house as it was late in the evening. In his cross-examination, he admits that girls had gone towards agriculture field after hearing whistle call and after 5-7 minutes, Kailash, Kamlesh, Phagnu, Bhushan, Kushal and Dilip also went towards the agriculture field and after 2-3 minutes, Kailash, Kamlesh, Phagnu, Bhushan, Kushal and Dilip were seen coming back along with Sarita and Basanti.
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on their disclosure before the Court that they were subjected to gang rape. Sarita has remained firm on her evidence that she was taken towards the agriculture field by use of force by the present appellants and further that some of the boys accompanied Basanti in the same agriculture field. Both Sarita and her friend Basanti, PW-13 (prosecutrix in another connected Criminal Appeal No.512 of 2004) have very firmly stated regarding commission of offence of rape on Sarita by the present appellants and some other persons (accused in another connected Criminal Appeal No.512 of 2004) having committed rape on Basanti. The manner, in which, the incident was reported to the parents by Sarita in the night and arrival of parents of Basanti in the night, information given to the Kotwar and Up-Sarpanch of the Village and accused-appellants and their parents were also called in the evening, clearly shows that it was not a case of false implication. Soon after the incident, Basanti and Sarita disclosed the incident of commission of offence of rape to number of persons including their parents and villagers had gathered around and the matter went open. It has also come that Up-Sarpanch of the Village, after discussing with all the parties, suggested to compromise, which the prosecutrix and her parents did not acceded to and they decided to lodge report in the police station. 16. The defence built up on the basis of the evidence of Indal Sahu, PW-12 is that according to the prosecution witnesses itself, the girls had gone towards the field on a whistle call, probably they called by their lovers and other boys of the village chased them and having found that two boys had run away, the present appellants and other boys scolded Sarita and Basanti as to why they were indulging in this type of activity with some other boys and they were brought back to their house. Further defence is that Sarita and Basanti had gone towards the agriculture field to meet their friends in the night, but, in order to save themselves from the allegations of affair, both girls i.e. Sarita and Basanti
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cooked up a false story of rape of Basanti by the present appellants and other persons/boys in another criminal case.
The evidence of Dr. Abha Rani Singh, PW-2 does not state that there was no possibility of any rape having been committed. She has deposed in para 7 of her testimony that no definite opinion can be given, but possibility of partial penetration cannot be ruled out. Ocular evidence of the prosecutrix, Sarita, PW3 of she having been subjected to rape and the manner, in which, it was described, does not create any doubt on her statement, it may be that though there was slight penetration. The evidence of Sarita, PW-3 shows that she was overpowered by number of boys and she was abused and threatened also. She does not say that she could offer in serious resistance. Therefore, the evidence of the prosecutrix could not be disbelieved only on the ground the injury was not
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found on any part of the body or private parts. It is not invariable rule of law that the evidence of the prosecutrix, unless corroborated from the medical evidence, is liable to be disbelieved.
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fully proved. Dilip is also involved with the other appellants in catching hold of the prosecutrix and dragging her inside the agriculture field. Dilip was asked to watch others during the period, two other appellants committed rape on the prosecutrix. Therefore, it is proved that Dilip is also involved in the commission of offence of gang rape. Even on the aspect of sentence, we do not find any ground to interfere with the same as the present is not a case of imposition of life imprisonment on the appellants and they have been convicted for commission of offence of gang rape and imposed jail sentence of 12 years.
SD/SD/- (Manindra Mohan Shrivastava) (Rajani Dubey) Judge Judge
Tumanw
3 issues framed by the court
Whether the testimony of the prosecutrix could be believed despite medical evidence showing an intact hymen and absence of injuries?
Whether the delay of one day in lodging the FIR was satisfactorily explained?
Whether the appellant who kept watch while the others committed rape was guilty of gang rape?
2 provisions across 1 enactments
Kushalram
Kamlesh Kumar alias Kamal
Dilip
State of Chhattisgarh
Manindra Mohan Shrivastava
Rajani Dubey
As recorded by the court registry
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