High Court allowed appeals partly. Convictions for rape (A-1 to A-6) maintained, but life sentence reduced to 10 years. A-7's conviction under Section 376(2)(g) IPC quashed due to lack of evidence and benefit of doubt.
Sentence for Section 376(2)(g) IPC reduced to 10 years for A-1 to A-6; Conviction and sentence for A-7 set aside.
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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AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 808 of 2013
1. Nand Kishore Tirkey, S/o. Devsai, Aged About 28 Years.
2. Shravan Kerketta, S/o. Santosh Kerketta, Aged About 22 Years.
3. Pradeep Lakra, S/o. Birbal Lakra, Aged About 18 Years.
4. Vijay Khakha, S/o. Dhansai Khakha, Aged About 22 Years.
5. Sunil Lakra, S/o. Maniram Lakra, Aged About 18 Years.
6. Jitendra Lakra, S/o. Jhangli Ram Lakra, Aged About 18 Years.
All Appellants are R/o. Village - Chidrapara, Police StationDharamjaigarh, Civil & Revenue District : Raigarh, Chhattisgarh
---Appellants
Versus
State Of Chhattisgarh, Through The Station House Officer, Police Station- Dharamjaigarh, Civil & Revenue District Raigarh, Chhattisgarh
---Respondent
| For Appellants : |
Mr. J.K. Saxena & Aman Kumar Kesharwani, Advocates |
|---|---|
| State-Respondent : | Mr. Sudeep Verma, Dy. Govt. Advocate & |
| Mr. Soumya Rai, Panel Lawyer |
AND
CRA No. 780 of 2013
Naveen Kerketta, S/o. Late Sughan Ram, Aged About 22 Years, R/o. Village Chidapara, Police Station & Tahsil Dharamjaigarh, Civil & Revenue District Raigarh, Chhattisgarh
---- Petitioner
Versus
State Of Chhattisgarh, Through The Station House Officer, Police Station- Dharamjaigarh, District Raigarh, Chhattisgarh.
---- Respondent
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For Appellant : Mr. Awadh Tripathi, Advocate For State-Respondent : Mr. Sudeep Verma, Dy. Govt. Advocate
Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Radhakishan Agrawal
Judgment On Board
(02.02.2023)
Sanjay K. Agrawal, J.
1. The appellants namely Nand Kishore Tirkey (A-1), Shravan Kerketta (A-2), Pradeep Lakra (A-3), Vijay Khakha (A-4), Sunil Lakra (A-5) and Jitendra Lakra (A-6) in Criminal Appeal No.808 of 2013 and appellant namely Naveen Kerketta (A-7) in Criminal Appeal No.780 of 2013 have preferred these two appeals under Section 374(2) of Cr.P.C. calling in question their conviction and sentence awarded to them by impugned judgment of conviction and order of sentence dated 11.06.2013 passed by the learned Sessions Judge, Raigarh in Sessions Trial No.05/2013.
2. The appellants (A-1 to A-6) in Criminal Appeal No.808 of 2013 have been convicted and sentenced as under with a direction to run all the sentences concurrently.
| CONVICTION | SENTENCE |
|---|---|
| U/s. 341 of I.P.C. | : Rigorous imprisonment for 1 month with fine of Rs.300/-, in default of payment of fine, 7 days imprisonment (two times to |
| A-1 & A-2) | |
| U/s. 342/34 of I.P.C. | : Rigorous imprisonment for 6 months |
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with fine of Rs.500/-, in default of payment of fine, 2 months additional imprisonment. U/s. 506-B of I.P.C. : Rigorous imprisonment for 2 years with fine of Rs.1000/-, in default of payment of fine, 6 months additional imprisonment (to A-1 & A-2) U/s. 365 read with Sec. : Rigorous imprisonment for 2 years with 34 of I.P.C. fine of Rs.1000/-, in default of payment of fine, 6 months additional imprisonment. U/s. 376(2)(g) of I.P.C : Life imprisonment with fine of Rs.20,000/-, in default of payment of fine, 2 years additional imprisonment (out of life imprisonment sentence, 3 months rigorous imprisonment will be separate detention as per section 73 & 74 of I.P.C.
3. The appellant (A-7) in Criminal Appeal No.780 of 2013 has been convicted and sentenced as under with a direction to run all the sentences concurrently.
| CONVICTION | S | ENTENCE |
|---|---|---|
| U/s. 506-B of I.P.C. | : Rigorous imprison fine of Rs.1000/-, of fine, 6 imprisonment. |
ment for 2 years with in default of payment months additional |
| U/s. 342/34 of I.P.C. | : Rigorous impriso with fine of Rs. payment of fine, imprisonment. |
nment for 6 months 500/-, in default of 2 months additional |
| U/s. 365 read with Sec. 34 of I.P.C. |
: Rigorous imprison fine of Rs.1000/-, of fine, 6 imprisonment. |
ment for 2 years with in default of payment months additional |
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4. Case of the prosecution, in short, is that on 01.12.2012 in the evening at 5:30 p.m. at Chowki Rairumakhurd, Police Station Dharamjaigarh, District Raigarh, all seven appellants and two juvenile accused committed gang rape with the minor victim (PW-2) and also abducted her, wrongfully confined her and threatened her and looted Rs.500/- and also looted the mobile and purse of Rajesh @ Rambrij Paikara (PW-1) and thereby committed the offence. On 01.12.2012 at around 7:20 p.m. FIR was lodged by Rambrij Paikara (PW-1) against the unknown person by telephonic call stating that near about Nandanjhariya Nala, while they were coming from the side of Lailunga towards Patthalgaon, two boys appeared and taken away a girl towards forest and on such information, the police reached to the spot and searched the girl into the forest proximate to Nandanjhariya Nala, but she could not be traced. Again the search operation was conducted, in which, in an abandoned house they noticed a flame of fire and on suspicion, the police made search of that abandoned house where four persons namely Nand Kishore Tirkey (A-1), Shravan Kerketta (A-2) and Vijay Khakha (A-4) were consuming liquor and the victim (PW-2) was also found present in their company. Immediately, the police drawn
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recovery panchnama vide Ex.P-11 and recorded the statement of the girl / victim where she stated that she has been kidnapped and gang-raped by 10 persons including present appellants. The victim has categorically stated that she has been subjected to gang-rape by all 10 accused persons. The police also recovered empty liquor bottles, plastic disposal glasses vide Ex.P-16 and at the instance of the victim (PW-2), the remaining accused persons were apprehended from their houses and in furtherance of investigation, the police sent the request letter for MLC of the victim vide Ex.P-42. Dr. Uma Agrawal (PW-7) examined the victim and submitted her MLC report vide Ex.P-32 stating that the victim is subjected to gang-rape. Thereafter, the memorandum statement of Nand Kishore (A-1) was recorded vide Ex.P-12 and as per the disclosure statement, seizure of ladies purse belonging to victim was recovered and undergarment of the accused (A-1) was also seized vide Ex.P13, which was sent for FSL. Thereafter, police has recorded the memorandum statement of Shravan Kerketta (A-2) vide Ex.P-14 and seized the undergarment of A-2 vide Ex.P-15 and similarly on the memorandum statement of Pradeep Lakra (A-3) his undergarment was seized vide Ex.P-17, on the memorandum statement of Sunil Lakra (A-5) his undergarment was seized vide Ex.P-18, on the memorandum statement of Naveen Kerketta (A-7) his undergarment was seized vide Ex.P-19, on the memorandum statement of Vijay Khakha (A-4) his undergarment was seized vide Ex.P-20, on the memorandum
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statement of Jitendra Lakara (A-6) his undergarment was seized vide Ex.P-21 and all were sent for FSL. The victim’s vagina slides were also sent for FSL vide Ex.P-46 and the FSL report is Ex.P-49. As per the FSL report, on Articles A, B, D1, D2, E, F, G, H & M, stains of semen were found; however, on the undergarments of Sunil Lakra, Jitendra Lakra, Naveen Kerketta no stains of semen and human sperm were found. The Test Identification Parade was also conducted by the Executive Magistrate–Nandkumar Khande (PW-15). Thereafter, after due investigation, the appellants were charge-sheeted for the aforesaid offences before the criminal court and ultimately it was committed to the Court of Sessions for trial in accordance with law, in which the appellants abjured their guilt and entered into defence.
5. In order to bring home the offence, prosecution examined as many as 15 witnesses and exhibited 49 documents; whereas the defence has exhibited the documents Exs.D-1 & D-2C.
6. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellants for the offence under Sections 341, 342/34, 506-B, 363/34, 365/34, 376(2)(g) & 392/34 of I.P.C.; however they were acquitted of the offence under Section 394/34 of I.P.C. and sentenced as mentioned in the opening paragraph of this judgment, against which the present appeals have been preferred.
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7. Mr. J.K.Saxena & Aman Kumar Kesharwani, learned counsel appearing on behalf of A-1 to A-6, would submit that there is no legally admissible evidence led on behalf of the prosecution and the appellants have been convicted on the basis of surmises and conjectures and the finding recorded by the trial Court is perverse on record and even otherwise the offences were not found against them. Alternative submission of learned counsel is that they are in jail for more than 10 years and minimum sentence prescribed is 10 years for offence under Section 376(2)(g) of I.P.C. They relied on the decision passed by the Superme Court in the matter of Thongam Tarun Singh v. State of Manipur1 and submit that sentence be reduced for the period of 10 years.
8. Mr. Awadh Tripathi, learned counsel appearing on behalf of Naveen Kerketta (A-7) would submit that there is no evidence against the appellant No.7 and he has been convicted only on the basis of self-serving statement of the victim, as there is no evidence on record to convict the appellant No.7 and further no allegation of rape has been made against him. He submits that by virtue of Explanation-I to Section 376(2)(g) of I.P.C., the appellant No.7 has been convicted, but Explanation-I is not attracted at all and therefore he deserves to be acquitted.
9. Mr. Sudeep Verma & Mr. Soumya Rai, learned State counsel would submit that the trial Court has rightly convicted all the
1 (2019) 18 SCC 77
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appellants for the aforesaid offences and therefore, the appeals deserve to be dismissed.
10. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.
11. Since one set of argument has been made on behalf of A-1 to A- 6 and separate submission has been made on behalf of A-7, therefore, we will firstly consider the case of A-1 to A-6 and thereafter consider the case of A-7.
12. In Criminal Appeal No.808 of 2013, the trial Court has convicted A-1 to A-6 on the basis of statement of the victim, which was supported by the statement of Dr. Uma Agrawal (PW-7) and further FSL report Ex.P-19, in which the stain of semen and human sperm was found on the undergarments of Nand Kishore (A-1), Shravan Kerketta (A-2), Pradeep Lakra (A-3) and Vijay Khakha (A-4). The victim has been examined as PW-2 before the Court and in her statement before the Court, she has clearly stated the names of A-1 to A-6 stating that first of all Nand Kishore & Shravan came and pushed her and then the accused Shravan Kerketta (A-2) caught hold of Rajesh @ Rambrij (PW1) and threatened him and stopped her to cry otherwise he will kill her and thereafter A-1 & A-2 took her and Rajesh (PW-1) to the forest and any how assaulted Rajesh and compelled him to abscond from the spot and thereafter, Vijay Khakha (A-4) also came on the spot then firstly Nand Kishore (A-1) committed
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sexual intercourse and thereafter Shravan Kerketta (A-2) and Vijay Khakha (A-4) and thereafter other three accused persons also committed sexual intercourse with her. She has also named juvenile Sawan, Juliyus & Manvel who have also committed sexual intercourse with her but she has not named specifically A-7 Naveen Kerketta in her statement before the Court but in the Court statement, she has only stated that all the accused persons committed sexual intercourse with her. The victim was examined by Dr. Uma Agrawal (PW-7) and her report is Ex.P-42, in which, she has opined that contusion marks present on both left and right thigh and swelling about 4x5 cm and found the hymen ruptured and she has sent two vaginal swabs and one pubic hair slide for FSL examination and in FSL report (Ex.P-49), on the vaginal slides D-1, D-2 and Article ‘C’ and undergarments ‘G’, the stains of semen and human sperm were found. As such, the finding recorded by the trial Court that A-1 to A-6 have committed sexual intercourse with the prosecutrix is a correct finding of fact based on evidence of the statement of the victim (PW-2) and statement of Dr. Uma Agrawal (PW-7) which has been further supported by FSL report Ex.P-49. Therefore, we do not find any illegality in the said finding recording by the learned trial Court for convicting the appellants for the offences under Sections 341, 342/34, 506-B, 365/34 376(2)(g) of I.P.C.
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13. Now it has been contended on behalf of the appellants that they are in jail from 01.12.2012 and their conduct is very good in jail and they have not committed jail offence and they have no criminal antecedent, therefore, they be sentenced for the period of 10 years already undergone. Learned counsel for the appellants have relied upon the decision of the Supreme Court on Thongam Tarun Singh (supra) to support their argument.
14. Admittedly, the date of offence is 01.12.2012 and the amendment in Section 376 of I.P.C. came into effect on 03.02.2013. Prior to this amendment, Section 376(2)(g) provides that whoever, 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. As such, the minimum punishment for the offence under Section 376(2)(g) was 10 years, which may be for life and liable to fine. In the instant case, the appellants have been awarded punishment for life imprisonment.
15. The Supreme Court in the matter of Thongam Tarun Singh (supra), which was also a case prior to amendment in Section 376(2)(g), considered the issue and reduced the sentence for eight years considering that the conduct of the appellants in the jail (post-conviction) was very good.
16. Learned State counsel has produced a report from the District Jail, Raigarh, where the accused/appellants have been lodged stating that the conduct of these appellants are normal, as such,
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they have not been found in any commission of jail offence. It was also brought on record that they have no criminal antecedents.
17. Following the principles of law laid down by the Supreme Court in Thongam Tarun Singh (supra) and considering that their conduct is normal / average and they have no criminal antecedents and they are in jail from 04.12.2012 for more than 10 years and 2 months; we are of the considered opinion that the sentence of life imprisonment for the offence under Section 376(2)(g) is reduced to 10 years 2 months. However, as directed by the trial Court, the sentences of other offences are to be run concurrently. The appeal of A-1 to A-6 are partly allowed by affirming the conviction for the offences, however, for offence under Section 376(2)(g), they are sentenced to rigorous imprisonment for 10 years and 2 months.
18. Now, in the appeal preferred by Naveen Kerketta (A-7), it is submitted by the learned counsel for the appellant that in Section 161 statement Ex.D-1, the victim did not name the appellant herein (Naveen Kerketta) and there is no FSL report available implicating the appellant as on the undergarment of the appellant, no stain of semen and human sperm was found and only on the basis of seizure memo Ex.P-11, the appellant herein has been convicted, which has been countered by the learned State counsel that the appellant/ accused (A-7) can be convicted under Section 376(2)(g) of I.P.C. read-with
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Explanation-I as stood prior to 03.02.2013 and therefore, even if the appellant had not been named by victim, by virtue of Section 376(2)(g) read with Explanation- 1, he has rightly been convicted for the offence under Section 376(2)(g) of I.P.C. In order to appreciate the plea raised at the Bar, it would be appropriate to notice Section 376(2)(g) of I.P.C. read with Explanation-1.
“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.”
19. In order to establish an offence under Section 376(2)(g) of I.P.C. read with Explanation-1 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.
20. The Supreme Court in the matter of Ashok Kumar v. State of Haryana2 has held that Section 376(2)(g) read with Explanation1 embodies a principle of joint liability and the essence of that liability is the existence of common intention presupposes prior concert which may be determined from the conduct of offenders
2 (2003) 2 SCC 143
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revealed during the course of action and held in paragraph 8 as
under :
“8. Charge against the appellant is under Section 376(2)(g) IPC. 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 offender. In such cases, there must be criminal sharing marking out a certain measure of jointness in the commission of offence.”
21. The principle of law laid down in Ashok Kumar (supra) has been followed with approval in the matter of Rai Sandeep v. State (NCT of Delhi)3 relying upon the decision of Krishan Kumar Malik v. State of Haryana4 and held as under :
“32. In the decision reported as Krishan Kumar Malik v. State of Haryana (supra) in respect of the offence of gang rape under Section 376 (2) (g), IPC , it has been held as under in paras 31 and 32:
3 (2012) 8 SCC 21
4 (2011) 7 SCC 130
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“31. No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, which have already been projected hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the appellant guilty of the said offences.
32. Indeed there are several significant variations in material facts in her Section 164 statement, Section 161 statement (CrPC), FIR and deposition in court. Thus, it was necessary to get her evidence corroborated independently, which they could have done either by examination of Ritu, her sister or Bimla Devi, who were present in the house at the time of her alleged abduction. The record shows that Bimla Devi though cited as a witness was not examined and later given up by the public prosecutor on the ground that she has been won over by the appellant.”
(emphasis added)
22. Reverting to the facts of this case in light of the principles laid down in Ashok Kumar (supra) and Rai Sandeep (supra) , it is quite vivid that in the instant case admittedly, in Section 161 statement of the victim Ex.D-1, the victim has named the appellant only to be present at the time when police party reached to the place of incident, but no overt act has been alleged against the present appellant. Even in the statement before the Court, he has not been specifically named by the victim alleging any overt act. While confronting with the statement Ex.D-1, she has simply stated that she cannot state
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the reason why the name of all the accused persons has not been stated in the statement under Section 161 Ex.D-1. Furthermore, there is no corroborative piece of evidence against the appellant, even in the FSL report, the report has been found negative qua - appellant No.7. Furthermore, except that the appellant No.7 was present in the spot when the police reached and recovered the victim along with other co-accused persons, it cannot be by that fact alone, the inference that the appellant No.7 being in concert with the other six accused persons cannot be established.
23. The Supreme Court in the matter of Ashok Kumar (supra) held that mere presence of the accused in the house cannot be termed that he was aware of the illicit affair going on between and held as under :
“9……….Apart from the fact that he was present in his house at about 3.30 p.m. in hot summer month at the crucial time, nothing more is established. By that factum alone, the inference that the appellant being in concert with Anil Kumar cannot be established. We cannot presume that by his mere presence in his house, he was aware of the illicit affair going on between Anil Kumar and the victim, or that he was acting in concert with Anil Kumar.”
24. There is no other incriminating piece of evidence against the appellant No.7, as such, in absence of supportive evidence, the appellant No.7 is entitled for the benefit of doubt and, as such, the conviction and sentence of the appellant No.7 is set aside and he is acquitted on the basis of benefit of doubt.
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Consequently, the appeal of A-7 is allowed. His conviction and sentence are set-aside.
25. Accordingly, the appeal of A-1 to A-6 are allowed in part. Their conviction and sentence are hereby maintained for the offence under Sections 341, 342/34, 506-B, 365/34 of I.P.C., but while maintaining their conviction for offence under Section 376(2)(g) of I.P.C., their sentence for the offence under Section 376(2)(g) of I.PC. is reduced to 10 years & 2 months, which has already been undergone by them, but the fine sentence imposed by the learned trial Court shall remain intact.
26. Accordingly, all the appellants be released from jail forthwith, if not required in any other case.
Sd/Sd/- (Sanjay K. Agrawal) (Radhakishan Agrawal) Judge Judge
Ashok
2 issues framed by the court
Whether life sentence for gang rape under Section 376(2)(g) IPC should be reduced considering the period in jail.
Whether an appellant named only as present at the scene without specific allegations or forensic evidence can be convicted under Section 376(2)(g) IPC via Explanation-I.
Colour shows how this judgement treated each authority
Thongam Tarun Singh v. State of ManipurRelied on¶46
Thongam Tarun Singh v. State of Manipur (1)
Ashok Kumar v. State of HaryanaRelied on¶69
Ashok Kumar v. State of Haryana (2) (2003) 2 SCC 143 · Who else cites this
Rai Sandeep v. State (NCT of Delhi)Relied on¶76
Rai Sandeep v. State (NCT of Delhi) (3) (2012) 8 SCC 21 · Who else cites this
Krishan Kumar Malik v. State of HaryanaRelied on¶76
Krishan Kumar Malik v. State of Haryana (4) (2011) 7 SCC 130 · Who else cites this
4 provisions across 2 enactments
Nand Kishore Tirkey
Shravan Kerketta
Pradeep Lakra
Vijay Khakha
Sunil Lakra
Jitendra Lakra
Sanjay K. Agrawal
Radhakishan Agrawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
