Partly allowed

Nagesh @ Gondu v. State Of Chhattisgarh

Chhattisgarh HC12 Jan 2023CRA/703/2013

Case brief

AI extract

What is this about?

The Chhattisgarh High Court allowed the criminal appeal partly. It upheld the conviction of the appellant for rape of a six-year-old girl under Section 376(2)(f) IPC but directed his release forthwith by awarding a sentence equivalent to the period he had already undergone in custody.

What did the court decide?

Appeal partly allowed; sentence enhanced to period already undergone; applicant directed to be released forthwith if not required for any other offence.

Nagesh @ Gondu Vs State Of Chhattisgarh — Child Sexual Offences (POCSO) | Chhattisgarh HC (2023)

¶1

Page 1

¶2

NAFR

¶3

HIGH COURT OF CHHATTISGARH, BILASPUR

¶4

CRA No. 703 of 2013

¶5

Nagesh @ Gondu, S/o Naval Kishore Nirmalkar, Aged About 27 Years, R/o Pandri Tarai, Near Mahamaya Talab, Thana - Pandri, Raipur Civil and Rev. District - Raipur, Chhattisgarh. ---- Appellant

¶6

Versus

¶7

State of Chhattisgarh, Through : Police Station - Pandri, Raipur, Chhattisgarh. ---- Respondent

¶8

For Appellant : Mr. Shyam Sundar Lal Tekchandani, Advocate

¶9

For Respondent/State : Mr. Sudeep Verma, Deputy Government Advcocate

¶10

Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Rakesh Mohan Pandey

¶11

Judgment on Board 12/01/2023

¶12

Sanjay K. Agrawal, J.

¶13

1. This criminal appeal under Section 374(2) of the CrPC is directed against the impugned judgment of conviction recorded and sentence awarded by the learned Sessions Judge by which the appellant has been convicted for offence under Section 376 (2)(f) of Indian Penal Code (for short “IPC”) and sentenced to undergo imprisonment for life and pay fine of ₹ 1,000/-, in default, to further undergo additional rigorous imprisonment for one month.

¶14

1. Case of the prosecution in short is that the father of the

¶15

Page 2

¶16

victim lodged a report vide Ex.P/1 to the effect that his daughter/victim was watching television in the house of Chintabai (PW/10) in the neighboring and came back crying, then he noticed blood stains on the salwar of her daughter and blood was oozing on her private parts, then on being asked, she informed that it is the appellant who had taken her and committed sexual intercourse with her pursuant to which offence was registered and the victim was medically examined vide Ex.P/5 by Dr. Padmini Singh (PW/ 4) on which signs of struggle was found all over the body of the victim and slide was prepared and sent for FSL, but FSL report has not been brought on record.

¶17

1. After due investigation, the accused / appellant was chargesheeted for offence under Section 376 (2)(f) IPC and charge-sheet was filed before the jurisdictional criminal court and the case was committed to the Court of Sessions for conducting the trial, and for hearing and disposal in accordance with law.

¶18

1. The accused / appellant abjured the guilt and entered into defence. In order to bring home the offence, the prosecution examined as many as ten witnesses and exhibited 19 documents. The defence has examined two defence witnesses and exhibited three documents.

¶19

1. The trial Court after appreciating oral and documentary evidence available on record, convicted and sentenced the appellant under Section 376 (2)(f) IPC in the manner

¶20

Page 3

¶21

mentioned in the opening paragraph of this judgment against which the instant appeal under Section 374(2) of the CrPC has been preferred.

¶22

1. Mr. Shyam Sunder Lal Tekchandani, learned counsel for appellant, would submit that the trial Court is absolutely unjustified in convicting the appellant for the aforesaid offence as it has not been proved beyond reasonable doubt. He would further submit that if the offence has been found proved by this Court, the appellant be sentenced to the period already undergone by him.

¶23

1. Mr. Sudeep Verma, learned State counsel would submit that the prosecution has been able to bring home the offence and has proved the offence beyond reasonable doubt and learned trial Court has rightly convicted the appellant for offence punishable under Section 376 (2)(f) IPC, therefore, the appeal deserves to be dismissed.

¶24

1. We have heard learned counsel for the parties, considered their rival submissions and went through the records with utmost circumspection.

¶25

1. The victim (PW/1) has supported the case of the prosecution and has clearly stated that the appellant has taken her to his house and inserted his private part on her private part and thereby he committed sexual intercourse with her. Similarly, elder sister of the victim (PW/2), has also supported the case of the prosecution. Not only these

¶26

Page 4

¶27

two, father of the victim (PW/3), has also stated that on being asked to his daughter/ the victim (PW/1) she stated that the appellant has committed sexual intercourse with her. Dr. Padmini Singh (PW/4) has examined the victim and has proved the medical report (Ex.P/5), in her medical examination she found injuries on the private parts of the victim and slides have been prepared, which were sent for FSL, however, the FSL report has not been brought on record.

¶28

1. Considering the statement of the victim (PW/1), elder sister of the victim (PW/2) and father of the victim (PW/3), we are of the considered opinion that it is the appellant who has committed sexual intercourse with the victim, further the statement of the father of the victim (PW/3) is corroborated by the testimony of Dr. Padmini Singh (PW/4), who has medically examined the victim (PW/1) on 12.08.2012, as such, the prosecution has been able to bring home the offence beyond reasonable doubt and learned trial court has rightly convicted the appellant for the aforesaid offence. On the date of offence i.e. 12.08.2012, the unamended provision of Section 376 (2) (f) IPC was in force.

¶29

1. Prior to amendment of the provision of Section 376 IPC , it reads as under:

¶30

“ 376 . Punishment for rape.— (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be

¶31

Page 5

¶32

less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:

¶33

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

¶34

(2) Whoever,—

¶35

(a) being a police officer commits rape—

¶36

(i) within the limits of the police station to which he is appointed; or

¶37

(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or

¶38

(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or

¶39

(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or

¶40

(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman’s or children’s institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or

¶41

(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or

¶42

(e) commits rape on a woman knowing her to e pregnant; or

¶43

(f) commits rape on a woman when she is under twelve years of age; or

¶44

(g) commits gang rape,

¶45

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:”

¶46

Page 6

¶47

1. Reverting to the facts of the case, the victim was six years old on the date of offence, and it is the statement at the Bar that the appellant has no criminal antecedents, it is the first offence and he is in jail since 13.08.2012. On the date of offence he was 27 years old, though the minimum punishment prescribed for the offence under Section 376 (2) (f) IPC is 10 years which may extend to life and shall also be liable to fine but learned trial Court has not recorded specific finding for awarding life sentence.

¶48

1. In that view of the matter, in our considered opinion, ends of justice would be served if the appellant is sentenced to the period already undergone by him. The appellant is in jail since 13.08.2012, more than ten years, taking into consideration the period he has already undergone, we award the sentence for the period already undergone by him and it is directed that the appellant be released forthwith, if not required in any other offence.

¶49

1. Accordingly, this criminal appeal is partly allowed to the extent indicated herein-above.

¶50

Sd/Sd/-

¶51

(Sanjay K. Agrawal) (Rakesh Mohan Pandey) Judge Judge

¶52

Nadim

Nagesh @ Gondu v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Nagesh @ Gondu v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sat Kumari Banjare Vs State of Chhattisgarh

Devcharan Kenwat Vs State of Chhattisgarh

Samaylal Vs State Of Chhattisgarh

Harihar Yadav Vs State Of Chhattisgarh

Dilip Sahu, Vs State of Chhattisgarh

Shashi Pratap Singh @ Sonu and Anrs. Vs The State Of Chhattisgarh