Partly allowed

Laxminarayan Dhruv v. State of Chhattisgarh

Chhattisgarh HC11 Sept 2024CRA/263/2019

Case brief

AI extract

What is this about?

Appeal against conviction for gang rape and kidnapping of a 13-year-old. Court found no proof of common intention with three unknown co-accused, so gang rape charge failed; converted conviction to rape under Section 376 IPC read with Section 6 POCSO, sentencing to 10 years' rigorous imprisonment, while affirming convictions for kidnapping.

What did the court decide?

Conviction altered from S.376D IPC to S.376 IPC read with S.6 POCSO; RI 10 years with Rs.5,000 fine; S.363/34 and S.366/34 convictions upheld.

Laxminarayan Dhruv Vs State of Chhattisgarh — Child Sexual Offences (POCSO) | Chhattisgarh HC (2024)

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Page No.1 of 12 IN CRA-263-2019

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Digitally signed by SAIFAN SAIFAN KHAN Date: KHAN 2024.09.18 10:33:46 +0530

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2024:CGHC:35773-DB

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N AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 263 of 20 19

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[Arising out of judgment dated 06.12.2018, passed in Special Criminal Case No.42 of 2016 (State of Chhattisgarh v. Laxminarayan Dhruv), by 7^th Additional Sessions Judge, Raipur (C.G.)]

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Laxminarayan Dhruv, Son of Siyaram Dhruv, Resident of Ward No.17, Bal Gangadhar Tilak Ward, Tilda, Police Station Neora, District Raipur (Chhattisgarh)

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---- Appellant (In Jail)

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Versus

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State of Chhattisgarh, through Police Station Neora, District Raipur (Chhattisgarh)

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---- Respondent

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------------------------------------------------------------------------------------------- For Appellant : Mr. Bharat Lal Dembra, Advocate For Respondent : Mr. Arvind Dubey, Government Advocate -------------------------------------------------------------------------------------------

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Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Amitendra Kishore Prasad

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Judgment on Board (12.09.2024)

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Sanjay K. Agrawal, J

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(1) In this criminal appeal, the accused-appellant is invoking criminal appellate jurisdiction of this Court enshrined under Section 374(2) of CrPC by calling in question legality, validity and correctness of impugned judgment of conviction and order of sentence dated 06.12.2018, passed in Special Criminal Case No.42 of 2016 (State of Chhattisgarh v. Laxminarayan Dhruv), by 7^th

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Page No.2 of 12 IN CRA-263-2019

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Additional Sessions Judge, Raipur (CG), whereby he has been convicted and sentenced as under:

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Conviction	Sentence
U/s. 376-D of IPC r/w S.06 of the POCSO Act	Rigorous imprisonment for 20 years with fine of Rs.5,000/- and, in default of payment of fine,
[However, in light of S.42 of the POCSO Act, only punished under S.376-D of IPC]	additional rigorous imprisonment for 03 months.
U/s. 363 r/w S.34 of IPC	Rigorous imprisonment for 02 with fine of Rs.500/- and, in default of payment of fine, additional
	rigorous imprisonment for 01 month.
U/s. 366 r/w S.34 of IPC	Rigorous imprisonment for 03 with fine of Rs.1,000/- and, in default of payment of fine, additional
	rigorous imprisonment for 02 month.
[All the sentences are	directed to run concurrently ]

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(2) The case of the prosecution, in short, is that on 09.02.2016, at about 19:00 hours, at Village Tulsi, which comes within the ambit of Police Station Tilda Neora, District Raipur (CG), the accusedappellant alongwith other three unknown accused persons, firstly shared common intention with each other and, in furtherance thereof, the appellant abducted minor victim (PW-01), aged about 13 years, took her near the bank of the river and committed sexual intercourse with her against her will and consent and, thereby, said to have committed offences under Sections 363/34, 366/34 & 376D of IPC and under Section 06 of the Protection of Children from

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Page No.3 of 12 IN CRA-263-2019

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Sexual Offences Act, 2012 (for brevity the “POCSO Act”).

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(3) Further case of the prosecution is that when mother of the victim, namely, Jyoti Sharma (not examined) reported the matter to the police by filing written complaint (Ex.P/01), FIR (Ex.P/16) was registered and wheels of investigation started running, in which, panchnama and spot map were prepared vide Ex.P/06 & Ex.P/09 respectively. After obtaining necessary consent for the purpose of medical examination of the victim (PW-01) vide Ex.P/02, she was subjected to medical examination, which was conducted by Dr. Saroj Gandharv (PW-05). According to MLC report (Ex.P/14) of the victim, it has been opined that sexual intercourse has been done with her. Further, victim’s vaginal slides were prepared and handed over to the police for analysis alongwith her undergarment, pubic hair and jeans (full pant), which were seized vide Ex.P/15. The accused-appellant was arrested vide Ex.P/07 and sent for medical examination. Appellant’s MLC report is Ex.P/18 and his undergarment was also seized vide Ex.P/20. The aforesaid seized articles were sent for chemical examination vide Ex.P/27 and, according to FSL report (Ex.P/29), it has been mentioned that stains of human sperm/semen were found on the vaginal slide of the victim (PW-01).

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(4) Thereafter, in order to ascertain the correct age of the victim (PW-01), copies of relevant pages of he school’s admission register

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Page No.4 of 12 IN CRA-263-2019

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(Ex.P/11C) were obtained/seized vide Ex.P/13, wherein her date of birth has been recorded as 20.06.2003, meaning thereby, on the date of offence (i.e. 09.02.2016) the victim (PW-01) was minor aged about 12 years. After the statement of witnesses were recorded and investigation is completed, the appellant was charge-sheeted for the aforesaid offences in the competent criminal Court having jurisdiction, which was thereafter committed to the Court of Sessions for hearing and trial in accordance with law, in which, the appellant abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated.

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(5) The prosecution in order to prove its case examined as many as 14 witnesses and exhibited 29 documents apart from Article/A, whereas the appellant in support of his defence, neither examined any witness nor exhibited any documents.

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(6) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant for offence punishable under Section 376D of IPC read with Section 06 of the POCSO Act as also under Section 363/34 & 366/34 of IPC and sentenced him as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence.

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(7) Mr. Bharat Lal Dembra, learned counsel for the appellant

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Page No.5 of 12 IN CRA-263-2019

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would submit that the learned trial Court is absolutely unjustified in convicting the appellant for the aforesaid offences. He submits that Section 376D of IPC is not attracted in the present case for the reasons that: firstly, neither other three accused persons were identified by the victim (PW-01) nor prosecuted/tried by the prosecution till date and there is no allegation of common intention or sharing criminality by the appellant with other accused persons either in the written complaint (Ex.P/01) or in the FIR (Ex.P/16). Learned counsel further argued that even offence under Section 06 of the POCSO Act is also not established beyond reasonable doubt and, therefore, the present appeal deserves to be allowed.

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(8) Per-contra , learned State counsel would submit that the prosecution has been able to prove the offences beyond reasonable doubt by leading evidence of clinching nature. It is further submitted on behalf of the respondent-State that in view of statement of the victim (PW-01), wherein she has clearly narrated the incident and implicated appellant herein to be the author of the crime in question, coupled with medical evidence available on record i.e. MLC report of the victim (PW-01) [Ex.P/14] and FSL report (Ex.P/29), the trial Court has rightly convicted the appellant for the offences mentioned hereinabove. Thus, the present appeal is liable to be dismissed.

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(9) We have heard learned counsel for the parties, considered

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Page No.6 of 12 IN CRA-263-2019

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their rival submissions made herein-above and went through the records with utmost circumspection.

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(10) In the case at hand, the pivotal question would be whether offence under Section 376D of IPC is attracted and, if not, what will be the appropriate offence and consequent punishment for the appellant under the facts and circumstances of the present case ?

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(11) In order to answer the plea raised at the bar, it would be first relevant to notice Section 376D of IPC, inserted in the statute book w.e.f. 03.12.2015, which reads as under:

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“ 376D. Gang rape.- Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person’s natural life, and with fine;

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Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim;

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Provided further that any fine imposed under this section shall be paid to the victim.”

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(12) The above-quoted Section 376D of IPC was substituted by Act No.13 of 2013 w.e.f. 03.02.2013. Section 376(2)(g) contemplates “gang rape” and, in order to convict a person for offence under Section 376D of IPC or to bring him within the purview of Section

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Page No.7 of 12 IN CRA-263-2019

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376(2)(g) of IPC, it is necessary for the prosecution to prove that: (a) more than one person had acted in concert with the common intention to rape the victim and (b) more than one accused had acted in concerted in commission of crime of rape with pre-arranged plan, prior meeting of mind and with element of participation in action. As such, the prosecution would be required to prove premeeting of minds of the accused persons prior to commission of offence of rape by substantial evidence or by circumstantial evidence. The ingredients of Section 376(2)(g) of IPC read with Explanation I thereto, came up for consideration before their Lordships of the Supreme Court in the matter of Ashok Kumar v. State of Haryana1 , wherein in Para-08 it has been held as under:

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“ 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

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1 2003 (2) SCC 143

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Page No.8 of 12 IN CRA-263-2019

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out a certain measure of jointness in the commission of offence.”

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(13) The principle of law laid down in Ashok Kumar (supra) has been followed with approval in the matter of Rai Sandeep @ Deepu 2 . v. State (NCT of Delhi)

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(14) Returning to the facts of the present case in light of abovequoted principle of law qua whether the learned trial Court is justified in convicting the appellant for offence under Section 376D of IPC, it is quite vivid that a careful perusal of the impugned judgment and the entire record of the present case would show that the present appellant was the only person charged for offence under Section 376D of IPC, whereas, in the Final Report (annexed at Page No.42-45 of the paper-book) it has been recorded that so far as other accused persons are concerned they will be charge-sheeted separately, but till date no separate charge-sheet has been filed against them. Moreover, the said accused persons have also not been identified by any of the prosecution witnesses or by the victim (PW-01) till date and the trial has completed only prosecuting the present appellant. Indeed, the victim (PW-01) in Para-12 has clearly stated that on account of darkness she could not identify other accused persons who were assisting the appellant in the crime in question. Furthermore, in the written report (Ex.P/01) lodged by the mother of the victim, the names of other accused persons are not

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2 (2012) 8 SCC 21

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Page No.9 of 12 IN CRA-263-2019

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mentioned and it has only been stated that they were assisting the present appellant. Similarly, in the FIR (Ex.P/16) also the names of other accused persons are not mentioned, whereas in the specified Column No.07 of the details of the accused, it has only been mentioned “unknown persons”. The Supreme Court in Ashok Kumar (supra) has clearly held that in order to establish offence under Section 376(2)(g) of IPC there must be criminal sharing, marking out a certain measure of jointness in the commission of offence, as the said provision embodies a principle of joint liability and the essence of that liability is the existence of common intention and that common intention presupposes prior concert which may be determined from the conduct of offenders revealed during the course of action. However, in the present case, as per the statement of the victim (PW-01), firstly she could not identify the three accused persons, though they were allegedly present and were involved in intoxication and ran away from the spot/premises, but, the said three accused persons did not do any act sharing common intention by allowing her to go from the spot/crime scene. Further, nonmentioning of the names of other accused persons in the written complaint (Ex.P/01) and FIR (Ex.P/16) would show that the prosecution failed to establish pre-meeting of minds of the appellant alongwith other accused persons prior to commission of offence of rape with the victim (PW-01) by substantial evidence or by circumstantial evidence. Consequently, the conviction and sentence

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Page No.10 of 12 IN CRA-263-2019

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of the appellant for offence under Section 376D of IPC deserves to be modified to one under Section 376 of IPC read with Section 06 of the POCSO Act on the ground that the victim (PW-01) in her statement before the Court has clearly narrated the incident in question and implicated the appellant herein to be the author of the crime by stating that on the date and time of the offence, while she was alone in her house, the appellant came to her house and abducted her with the help of other three accused persons, took her near the bank of the river and committed sexual intercourse with her against her will and consent.

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(15) The aforesaid statement of the victim (PW-01) is also duly corroborated by medical evidence available on record i.e. (i) MLC report (Ex.P/14) of the victim, wherein it has been opined that sexual intercourse has been done with the victim (PW-01), which is duly supported by Dr. Saroj Gandharv (PW-05), who has medically examined the victim and (ii) FSL report (Ex.P/29), wherein it has been mentioned that stains of human sperm/semen were found on the vaginal slide of the victim (PW-01). Furthermore, the victim (PW01) was subjected to lengthy cross-examination, but nothing could be extracted from her to hold that the appellant has not committed sexual intercourse with her or she is telling lie before the Court in order to falsely implicate the appellant. As such, the testimony of victim (PW-01) coupled with other evidence available on record i.e. MLC report and FSL report inspire confidence and can be relied

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Page No.11 of 12 IN CRA-263-2019

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upon to hold the appellant guilty for having committed offence of rape with her, which is punishable under Section 376 of IPC. Furthermore, according to the copies of relevant pages of school’s admissions register (Ex.P/11C) of the victim, obtained/seized vide Ex.P/13, her date of birth has been recorded as 20.06.2003, meaning thereby, on the date of offence (i.e. 09.02.2016) the victim (PW-01) was minor aged about 12 years. As such, on the basis of aforesaid evidence available on record, we are of the considered opinion that the appellant is liable to be convicted for offence under Section 376 of IPC read with Section 06 of the POCSO Act instead of Section 376D of IPC, for which, in light of Uttar Pradesh v. Sonu Kushwaha3 and in view of Section 42 of the POCSO Act, he is sentenced to undergo rigorous imprisonment for 10 years. We hereby hold accordingly.

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(16) Concludingly, in view of foregoing analysis, we order as under:

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I. The conviction and sentence of the appellant for offence under Section 376D of IPC is hereby set aside and, instead thereof, he is convicted for offence under Section 376 read with Section 06 of the POCSO Act, for which, in light of Section 42 of the POCSO Act, he is sentenced to undergo rigorous imprisonment for 10 years with fine of Rs.5,000/- and, in default of payment of fine amount, sentenced to undergo additional rigorous imprisonment for 03 months;

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3 (2023) 7 SCC 475

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Page No.12 of 12 IN CRA-263-2019

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II. The conviction and sentences of the appellant for offence under Section 363 & 366 of IPC, as awarded by the learned trial Court, are hereby affirmed/upheld and same shall remain as it is being well merited.

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(17) Consequently, this criminal appeal is partly allowed to the extent indicated herein-above.

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(18) Let a certified copy of this judgment alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action.

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Sd/Sd/- (Sanjay K. Agrawal) (Amitendra Kishore Prasad) Judge Judge

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s@if

Laxminarayan Dhruv v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Laxminarayan Dhruv v. State of Chhattisgarh

Case brief

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