Dismissed

Narendra Besre v. State of Chhattisgarh

Chhattisgarh HC15 Sept 2022CRA/804/2002

Case brief

AI extract

What is this about?

High Court of Chhattisgarh dismissed an appeal against conviction for rape. The court held that eyewitness testimony and the self-scouting of preliminary victims corroborated forceful acts. Delay in FIR was not fatal in the context of an unmarried victim in a remote village. The court maintained conviction but noted the trial court failed to assign a special reason for the sentence below the statu

What did the court decide?

Appeal dismissed. Bail bonds cancelled and appellant ordered to be sent back to jail to undergo remaining sentence.

Narendra Besre Vs State of Chhattisgarh — Criminal Trial and Appeal | Chhattisgarh HC (2022)

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NAFR

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HIGH COURT of CHHATTISGARH, BILASPUR

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CRA No. 804 of 2002

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Narendra Besre, S/o Prem Singh Basre, aged about 23 years, Occupation- Cultivation, Vice President Janpad Gram Gondpal Thana Dugu Kondal, District Kanker

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---- Appellant

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Versus

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State Of Chhattisgarh through the District Magistrate Kanker, District Kanker

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---- Respondent

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Mr. F.S. Khare, Advocate

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For Appellant : Mr. F.S. Khare, Advocate For Respondent : Ms. Abhiyunnati Singh, Panel Lawyer

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S.B.: Hon'ble Shri Parth Prateem Sahu, Judge Judgment on Board

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15/09/2022

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This appeal arises out of judgment of conviction and order of sentence dated 19^th June 2002 passed by learned First Additional Sessions Judge, Kanker, District- Kanker in S.T. No.414 of 2001 whereby the appellant has been held guilty of commission of offence punishable under Section 376 of IPC and sentenced him to undergo RI for 5 years and fine of Rs.500/- and in default of payment of fine, additional RI for 6 months.

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Facts relevant for disposal of this appeal are that on 03.03.2001 at Village- Gondpal in the night at about 11:00 pm, the prosecutrix along

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with her sister in relation namely Ku. Kranti was going to call their sister Rajendri from another house for taking dinner in the house where marriage ceremony was going on. On the way, when prosecutrix and Ku. Kranti reached near primary school, appellant came there, caught hold of both the girls forcefully, upon which, Ku. Kranti managed to escape and, thereafter, appellant took the prosecutrix inside the school campus and committed forceful sexual intercourse with her in verandah of the school. Upon intimation of the fact of forcefully holding the hands of girl by some man/person, Indrabhan (maternal brother), Kasan, Lachhan, Chetan, Bhuneshwar, Ashok and others who were present in the marriage house, ran towards the spot and when they entered into the school premises, they saw the appellant committing the offence with the prosecutrix. He was caught red-handed. He was brought near the house where marriage ceremony was going on and other senior members present in the house were also called. The incident was reported on 18.03.2001 to the concerned police station, based upon which, FIR (Ex.P-1) was registered against the appellant for commission of offence under Sections 376, 506-B of the IPC. After completion of investigation, police submitted charge sheet against the appellant before the Court of competent jurisdiction for commission of offence under Sections 376 and 506-B of IPC. Learned trial Court considering the material available in the charge sheet, framed charges against the appellant for commission of offences under Sections 376, 506-B of IPC, to which, appellant denied and he was

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put to trial.

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Prosecution, to prove charges levelled against the appellant, examined as many as five witnesses namely prosecutrix (PW1), Kranti (PW2), Rupeshwari (PW3), Manoj (PW4), Indrabhan (PW5) brother of prosecutrix (PW6), Kasan Prasad (PW7), Chetan Prasad (PW8), Dr.A. R. Gota (PW9), Tiharu Ram Sahu (PW10), Kanhyiya Lal Sahare (PW11), Gurubachan Singh (PW12), Dr. (Smt.) P. Lal (PW13), Someswar Singh Kunwar (PW14) and Ashok (PW15) and exhibited documents i.e. FIR (Ex. P-1), Seizure Memo (Ex.P-2), Crime details form (Ex.P-3), statement of Manoj under Section 161 Cr.P.C. (Ex.P-4), Medical examination report of accused (Ex.P-5), Spot Map (Ex.P-6), Memo for sending Spot Map (Ex.P-7), certificate issued by Block Education Officer mentioning birth of the prosecutrix (Ex.P-8), Dakhil-kharij register (Ex.P-9), MLC report of prosecutrix (Ex.P-10), Seizure Memo (Ex.P-11), Memo for sending medical examination report of the proscriptive (Ex.P-12), medical examination report of prosecutrix (Ex.P-13), request letter for examination of wearing apparels of the accused and prosecutrix (Exs.P-13), report of wearing apparels (Ex.P-14), Seizure memo (Ex.P-14 and Ex.P-15), statement of Ashok under Section 161 of Cr.P.C. (EX.P-15), Arrest Memo (Ex.P-16), request letter to FSL for examination of articles (Ex.P-17 and Ex.P-18) and request letter for medical examination of accused (Ex.P-19). In his defence, appellant examined two defence witnesses namely Pardeshi Ram (DW1) and Ramdayal (DW2). After

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conclusion of trial, learned trial Court found the appellant guilty of commission of offence under Section 376 of IPC, convicted and sentenced him as mentioned in para-1 of this judgment.

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Mr. F.S. Khare, learned counsel for the appellant would submit that the appellant has been falsely implicated in the case. The prosecutrix and the appellant were known to each other prior to date of incident and on the date of incident, prosecutrix was a consenting party. He submits that as per school register, proved by the prosecution, prosecutrix was aged about 19 years on the date of incident. He contended that the prosecutrix did not suffer any external injury, as per statement of the prosecution witnesses Indrabhan (PW5), prosecutrix was found unclothed at the time of incident which shows that prosecutrix herself was a consenting party. He also submits that during investigation, prosecutrix has not stated that her bangles were broken at the time of resistance or police seized any piece of broken bangles. Dr. Smt. P. Lal (PW13) who examined prosecutrix, also opined that she cannot give any opinion of recent sexual intercourse with the prosecutrix. He contended that as there is no sign of resistance found by Dr. Smt. P. Lal (PW13), the entire allegation levelled against the appellant of committing forceful sexual intercourse with the prosecutrix becomes false. Lastly, he contended that as the prosecutrix was a consenting party and, therefore, report was not lodged immediately and the appellant as well as the prosecutrix was called in the village meeting for their illegal act. She

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has not narrated the incident of commission of rape upon her even to her brother (PW6) and he came to know about incident only when he was called for meeting by other villagers and community members and that too after more than ten days. According to material available in record, place of commission of alleged offence is the school premises, which as stated by the prosecution witnesses, is surrounded by boundary wall, hight of that wall as stated by the prosecution witnesses is about 5 ft. and, therefore, unless and until the prosecutrix is a consenting party, it is not possible to enter into the school premises unless person himself/herself attempt for the same. In support of his contention he places reliance upon the judgment in the case of Natwar Dewangan Vs. State of Chhattisgarh reported in 2006 (3) CGLJ 198.

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Ms. Abhiyunnati Singh, learned counsel for the State opposes submissions of learned counsel for the appellant and would submit that according to the report, FIR and statement of prosecutrix, appellant caught prosecutrix along with Ku. Kranti forcefully. Kranti somehow managed to escape from the place of incident and intimated the illegal act of appellant to Indrabhan (PW5) and others, upon which they immediately came running towards the place of incident and after hearing some noise coming out from the school they entered into school premises and caught red-handed the appellant committing offence with the prosecutrix. She submits that the prosecutrix stood firm with the allegation levelled by her and even

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in the statement of Indrabhan (PW5) it has come that when they reached to their village from their maternal uncle village, she informed her brother about the incident which he stated in para-1 of his evidence in examination-in-chief and, therefore, the submission made by learned counsel for the appellant that as the prosecutrix had not intimated her brother about alleged commission of offence at the earliest is per se wrong. She submits that in evidence available on record, reason of delay in lodging report is clear, as PW6, real brother of prosecutrix, stated that because of some religious pooja organized in his house and when prosecutrix along with her mother returned back to house, pooja was already started. She also contended that learned trial Court upon appreciating entire evidence available on record has rightly held the appellant guilty of commission of offence. Hence, the impugned judgment does not call for any interference.

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I have heard learned counsel for the respective parties and perused records of the Court below.

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Copy of FIR is marked as Ex.P-1 proved by prosecutrix (PW1) wherein she stated that on 03.03.2001 in the night at about 11:00 pm, she along with Ku. Kranti and Rupeshwari were going to call one Rajendri in her house from the house of her maternal uncle where marriage ceremony of her maternal brother Manoj was going on. According to the allegation, appellant came in front of the prosecutrix and another, caught hold hands of Kranti as well as prosecutrix.

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Kranti somehow managed to scape and the appellant forcefully took the prosecutrix in nearby school and committed forceful sexual intercourse with her. She also stated that, at that relevant point of time, she screamed. The boys of the village namely Indra, Kasan, Ashok, Lachhan, Baldu, Bhuneshwar, Manoj and Chain came on spot and caught red-handed the appellant. On 18.03.2001, she was sent for medical examination and she was examined by Dr.(Smt.) P. Lal (PW13) on 19.03.2001. Prosecutrix was examined after about fifteen days of incident. Prosecution examined prosecutrix as PW1 who stood firm with allegation levelled by her in the FIR and denied suggestions given to her of her relationship with the appellant and because of that she was a consenting party. She also stated that she also tried to escape when she was unclothed but she failed as the appellant caught hold of her. Ku. Kranti (PW2) who was accompanying prosecutrix in night when they were going towards the house of Rajendri, in her statement, supported the case of prosecution that she was also going along with the prosecutrix and on the way, appellant caught hold her hand and hand of prosecutrix, she somehow escaped and came back running to the house of maternal uncle of the prosecutrix and intimated about the illegal act of appellant. Rupeshwari (PW3), as per FIR was also following the prosecutrix and Ku. Kunti, saw both the girls standing on the road and screaming, upon which, she went back to house and intimated the fact that someone has caught hold of Ku. Kranti and prosecutrix. Indrabhan (PW5) is resident of same village. He was also attending

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marriage of Manoj (PW4), maternal brother of prosecutrix, and sitting in the house after taking dinner. He stated that in front of him, three girls i.e. prosecutrix (PW1), Kranti (PW2) and Rupeshwari (PW3) went out to call their sister. Rupeshwari cam back to take shawl and lag behind the other two. He also admitted that it is Rupeshwari who initially informed about some person obstructed Kranti (PW2) and prosecutrix and when they reached near school, he heard some voice coming from school and thereafter they entered the school and saw the appellant committing sexual intercourse with the prosecutrix. Similar statement is made by Kasan Prasad (PW7) who is also one of the eyewitness to the incident. Chetan Prasad (PW8) stated that in night, he heard some voice and upon going to the place from where voice and scream was coming, he saw that the appellant/accused was caught hold by Indra Prasad, Kasan, Bhuneshwar, Lachhne, Chain Singh and at that time, appellant was not having any cloth over his body.

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From the aforementioned evidence, it is appearing that appellant was seen committing sexual intercourse with the prosecutrix by other person also.

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Submission of learned counsel for the appellant is that appellant was establishing physical relation with the prosecutrix with her consent. To appreciate the submission of learned counsel for the appellant if the facts and evidence are considered as it is appearing from the records would show that other witnesses who were accompanying

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prosecutrix has clearly stated that it is the appellant who forcefully caught hold hands not only of the prosecutrix but also of Ku. Kranti (PW2) who was present along with the prosecutrix and came to call their sister from some other nearby house. Rupeshwari (PW3) who was following prosecutrix and Ku. Kranti (PW2), saw some person obstructing them. They were screaming, upon which, she returned back to house of PW4 and informed the persons present there and thereafter Indrabhan (PW5) along with others ran towards the place of incident. In evidence of Indrabhan (PW5) it has come that he heard some noise coming from the school. He also heard noise of foot coming from the school and when they entered into verandah of the school, they saw the appellant committing sexual intercourse with the prosecutrix. In view of the aforementioned evidence available on record, submission of learned counsel for the appellant that prosecutrix was consenting party is not acceptable.

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So far as the argument of learned counsel for for the appellant that the boundary wall was about 5 ft. high and it is not possible to take the prosecutrix forcefully is concerned, Kranti (PW2) who at the time of incident was associated and manged to run away from spot, in para-3 of her evidence, states that wall of school is damaged. Indrabhan (PW5) in his evidence, stated that there was a small opening for execution of construction work. From the above, evidence, it cannot be said that there was no place of entry without jumping of wall.

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The submission made by learned counsel for the appellant that doctor who examined prosecutrix did not find any external injury over the person of prosecutrix, in the facts of the case, is not having much relevance because the report was lodged after about 15 days of the incident, the prosecutrix was examined on sixteenth day of the incident and, therefore, merely some corresponding injury of resistance was not found on the person of the prosecutrix, entire prosecution case cannot become suspicious or false.

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So far as submission of learned counsel for the appellant with regard to delay in lodging FIR and holding of the meeting in the village only because the prosecutrix was indulged in making physical relationship with the appellant is concerned, it is also not acceptable in the opinion of this Court, because the incident happened in the year 2001 in remote scheduled village. The parties belong to triable community and if for commission of some offence, village meeting is taken place, without any other corroborative piece of evidence, it cannot be presumed that the meeting was organized only because the prosecutrix was consenting party. From the evidence of PW6, brother of the prosecutrix, it is appearing that there was some village meeting which he could not attend earlier because of some pooja organized in his house for a period of ten days and after completion of pooja, he attended meeting wherein persons present there have advised him to lodge report in the police station.

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Considering the entire facts and circumstances of the case, delay in

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lodging FIR of 15 days will not be fatal in the case of rape committed upon unmarried girl. Decision relied upon by learned counsel for the appellant in the case of Natwar Dewangan (supra) is on different facts where the prosecutrix was a married lady and the place of incident in that case was not a scheduled remote area. Hence, the judgment relied upon by learned counsel for the appellant is not applicable to the facts of the case.

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Learned trial Court imposed punishment on the appellant of RI for 5 years without assigning any exceptional special reason in the impugned judgment. Section 376 of IPC provides punishment for imprisonment which shall not be less than seven years. Learned trial Court, without assigning any reason, more so special reason, has awarded punishment of RI for 5 years which is less than the minimum sentence prescribed under the provision of 376 of IPC, which in the opinion of this Court, was not proper, but as the State has not preferred any appeal challenging the sentence awarded to the appellant, this Court is not passing any order, but for maintaining the judgment of conviction and sentence awarded by learned trial Court.

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For the aforementioned discussion, I do not find any infirmity or perversity in the finding recorded by learned Court below holding the appellant guilty of commission of offence under Section 376 of IPC. In the result, appeal fails and is hereby dismissed.

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16.By virtue of order of suspension of jail sentence passed in this appeal,

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the appellant is on bail. His bail bonds are cancelled and the appellant be sent back to jail to undergo remaining period of jail sentence.

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Sd/-- /-(Parth Prateem Sahu) Judge

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Praveen

Narendra Besre v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Narendra Besre v. State of Chhattisgarh

Case brief

What is this about?

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