Amar Sai Vs State of Chhattisgarh

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Page No.1 of 13

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IN

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CRA-1559-2019 & CRA-862-2018

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Digitally signed by SAIFAN SAIFAN KHAN Date: KHAN 2025.01.21 16:42:34 +0530

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2025:CGHC:2015-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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[Arising out of a common judgment dated 04.04.2018, passed in Special (SC/ST) Case No.15 of 2016 (State of Chhattisgarh v. Amar Sai & 02 others), by the Special Judge (ST/SC Act), Jashpur (CG)]

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Criminal Appeal No. 1559 of 20 19

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Amar Sai, Son of Jogi Ram, aged about 45 years, Caste- Lohar, Resident of Sagibhawana, Police Station Kansabel, District Jashpur (Chhattisgarh)

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	----Appellant (In Jail) Versus
State of Chhattisgarh,	through Police Station Kansabel, District-
Jashpur (Chhattisgarh)	----Respondent
--------------------------------- For Appellant	------------------------------------------------------------ : Mr. Saurabh Dangi, Advocate/Panel Lawyer appointed through CG High Court Legal Services Committee
For Respondent-State ---------------------------------	: Mr. HAPS Bhatia, Panel Lawyer ------------------------------------------------------------

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WITH

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Criminal Appeal No. 862 of 20 18

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Ajanti Bai, Wife of Makandur Lohar, aged about 32 years, Resident of Sarga, Police Station Sitapur, District Ambikapur (Chhattisgarh)

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---- Appellant (On Bail) Versus State of Chhattisgarh, through Station House Officer, Police Station Kansabel, District- Jashpur (Chhattisgarh) ---- Respondent ---------------------------------------------------------------------------------------------

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Page No.2 of 13

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IN

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CRA-1559-2019 & CRA-862-2018

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For Appellant : Mr. Manoj Chouhan, Advocate For Respondent-State : Mr. HAPS Bhatia, Panel Lawyer

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Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Judgment on Board

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(13.01.2025)

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Sanjay K. Agrawal, J

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(1) Regard being had to the similitude of the questions of fact and law involved and being arising out of a common impugned judgment dated 04.04.2018, on the joint request of learned counsel for the parties, both these criminal appeals are clubbed together, heard together and are decided by this common judgment.

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(2) In these criminal appeals filed under Section 374(2) of Cr.P.C., two accused/appellants, namely, Amar Sai (A-1) and Ajanti Bai (A3) have called in question the legality, validity and correctness of a common impugned judgment of conviction and order of sentence dated 04.04.2018, passed in Special (SC/ST) Case No.15 of 2016 (State of Chhattisgarh v. Amar Sai & 02 others), by the Special Judge, constituted under the provisions of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short the “Act of 1989”), Jashpur (CG), whereby they have been convicted and sentenced as under:

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As regards appellant- Amar Sai (A-1):

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Conviction	Sentence

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Page No.3 of 13

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CRA-1559-2019 & CRA-862-2018

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U/s. 376(2)(f) of IPC	Rigorous imprisonm fine of Rs.1,000/- payment of fine, imprisonment for 03	ent for 14 years with and, in default of additional rigorous months.
U/s. 506 of IPC	Rigorous imprisonm fine of Rs.500/- payment of fine, imprisonment for 01	ent for 01 year with and, in default of additional rigorous month.
U/s. 313 R/w S.34	of Rigorous imprisonm	ent for 03 years with
IPC	fine of Rs.1,000/- payment of fine, imprisonment for 02	and, in default of additional rigorous months.

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[All the sentences are directed to run concurrently]

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As regards appellant- Ajanti Bai (A-3):

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Conviction	Sentence
U/s. 313 of IPC	Rigorous imprisonment for 03 years with
	fine of Rs.1,000/- and, in default of
	payment of fine, additional rigorous
	imprisonment for 02 months.

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(3) The case of the prosecution, in short, is that between November, 2011 to June, 2016, firstly, appellant- Amar Sai (A-1) committed repeated sexual intercourse with the victim (PW-01) [aged about 18-19 years], in his house situated at Sagibhawana, which comes within the ambit of Police Station Kansabel, District Jashpur (CG) and also threatened her to kill if she discloses about the same to anyone and, thereafter, when the victim (PW-01) became pregnant, with the aid and assistance of accused-appellant Ajanti Bai (A-3) and accused- Mukundar (A-2) [who stands acquitted by the learned trial Court] got the victim’s abortion by giving her

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Page No.4 of 13

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IN

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medicine that too without informing her and further tried to hide the evidence relating to abortion. As such, the appellant- Amar Sai (A-1) is said to have committed offences under Section 376(2)(f), 506-B & 313/34 of IPC, as also under Section 06 of the Protection of Children from Sexual Offences Act, 2012 (for short the “POCSO Act”) and under Section 3(1)(b)(i) & 3(2)(v) of the Act of 1989, whereas appellant- Ajanti Bai (A-3) is said to have committed offences under Section 313 & 201 of IPC as also under Section 3(2) (v) of the Act of 1989.

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(4) It is further case of the prosecution that when victim (PW-01) reported the matter to the police by lodging written complaint (Ex.P/01), FIR (Ex.P/02) was registered against the appellants/accused persons and wheels of investigation started running, in which, spot map was prepared vide Ex.P/07A. Statement of the victim under Section 164 of CrPC was recorded vide Ex.P/05. After obtaining necessary consent vide Ex.P/03 & Ex.P/16, the victim (PW-01) was subjected to medical examination, which was conducted by Dr. Rosa Toppo (PW-10) and, as per her MLC report Ex.P/10, it has been opined that the victim (PW-01) had suffered sexual intercourse and she had aborted 05 months’ pregnancy. The accused-appellants were arrested vide Ex.P/18 & Ex.P/21 respectively. Further, appellant- Amar Sai (A-1) was sent for medical examination and his MLC report is Ex.P/12. In order to

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Page No.5 of 13

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CRA-1559-2019 & CRA-862-2018

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ascertain the correct age of the victim (PW-01), copy of her school admission register (Ex.P/09C) was obtained/seized vide Ex.P/08, wherein her date of birth has been recorded as 28.03.1998. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet in the competent criminal court having jurisdiction and, thereafter, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellants/accused abjured their guilt and entered into defence by stating that they are innocent and have been falsely implicated.

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(5) The prosecution in order to prove its case examined as many as 18 witnesses and exhibited 23 documents, whereas the appellants-accused in support of their defence, though not examined any witness, but exhibited 02 documents.

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(6) The learned trial Court after appreciating the oral and documentary evidence available on record, though acquitted appellant- Amar Sai (A-1) for offence under Section 06 of POCSO Act and under Sections 3(1)(b)(i) and 3(2)(v) of the Act of 1989, as also acquitted appellant- Ajanti Bai (A-3) for offence under Section 201 of IPC and under Section 3(2)(v) of the Act of 1989, but proceeded to convict appellant- Amar Sai (A-1) for offences under Sections 376(2) (f), 313/34 & 506 of IPC, whereas convicted appellant- Ajanti Bai (A3) for offences under Section 313 of IPC and sentenced them as

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Page No.6 of 13

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CRA-1559-2019 & CRA-862-2018

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mentioned in Para-02 of this judgment, against which these appeals have been preferred by the appellants-accused questioning the common impugned judgment of conviction and order of sentence.

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(7) Mr. Saurabh Dangi, learned counsel appearing for appellantAmar Sai (A-1) in CRA-1559-2019 submits that the learned trial Court is absolutely unjustified in convicting the appellant- Amar Sai (A-1) for the aforementioned offences, as the prosecution has failed to prove the said offences beyond reasonable doubt. He further submits that the testimony of the victim (PW-01) is not reliable and trustworthy. The victim (PW-01) was held to be major aged about 18 years on the date of offence by the learned trial Court and, as such, she was consenting party. The forensic evidence is also not available in the present case, therefore, the appellant is entitled for acquittal on the basis of benefit of doubt. In alternative, learned counsel further submits that though the sentence of 14 years’ RI has been awarded to the appellant- Amar Sai (A-1) by the learned trial Court for having committed offence under Section 376(2)(f) of IPC, but neither any special reason nor any mitigating circumstance has been recorded by the learned trial Court for awarding the said sentence. Furthermore, the appellant was aged about 45 years at the time of commission of offence, except this case there is no other criminal antecedents reported against the appellant, therefore, his chances of reformation cannot be rulled out, which aspect has not

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Page No.7 of 13 IN

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CRA-1559-2019 & CRA-862-2018

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at all been considered by the learned trial Court. The appellant is in jail since 14.07.2016 i.e. for more than 08 years and 06 months, therefore, in view of the facts and above mentioned circumstances of the case, appellant- Amar Sai (A-1) be sentenced to the period already undergone by him for the offences in question. Hence, the appeal preferred by appellant- Amar Sai (A-1) deserves to be allowed in full or in part.

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(8) Mr. Manoj Chouhan, learned counsel appearing for appellantAjanti Bai (A-3) in CRA-862-2018 borrowed the argument putforth by Mr. Saurabh Dangi, learned counsel for appellant- Amar Sai (A1) and further submits that the learned trial Court is absolutely unjustified in convicting the appellant- Ajanti Bai (A-3) for offence under Section 313 of IPC, as the prosecution has failed to prove the said offences beyond reasonable doubt. In alternative, learned counsel submits that appellant- Ajanti Bai (A-3) being a lady aged about 40 years at present has already remained in jail from 06.10.2016 to 23.01.2017 i.e. for a period of more than 03 months, therefore, she be also sentenced to the period already undergone by her for offence under Section 313 of IPC. Hence, the appeal preferred by appellant- Ajanti Bai (A-3) also deserves to be allowed in full or in part.

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(9) Per-contra , learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the

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Page No.8 of 13

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prosecution has proved the offences beyond reasonable doubt by leading evidence of clinching nature. The victim (PW-01) has clearly supported the case of the prosecution, which is further supported by medial evidence available on record, thus, the learned trial Court has rightly convicted both the appellants for the offences mentioned hereinabove. Furthermore, it is not the case where sentence of the appellants requires to be reduced/altered, as appellant- Amar Sai (A-1) has committed repeated sexual intercourse with the victim (PW-01) and thereafter when she became pregnant aborted her feotus with the help of appellant- Ajanti Bai (A-3). Thus, both the appeals are liable to be dismissed at the threshold.

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(10) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

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(11) In view of the above, two questions arise for consideration before us: (01) whether the learned trial Court has rightly held the appellants guilty for the offences in question ? and, if yes, (02) whether the punishment awarded to both the appellants for the said offences by the learned trial Court is in accordance with law or same can be reduced ?

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As regards Question No.01:

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(12) In the case at hand, true it is that the learned trial Court has held the victim (PW-01) to be major aged about 18-19 years on the

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Page No.9 of 13

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date of offence and, therefore, acquitted appellant- Amar Sai (A-1) for offence under Section 06 of POCSO Act, but considering victim’s statement recorded before the Court, wherein she has clearly narrated the incident in question and implicated the appellants herein to be the author of the crime by stating that firstly appellantAmar Sai (A-1) committed repeated sexual intercourse with her and also threatened her to kill if she discloses about the same to anyone and, thereafter, when the she became pregnant, with the help of appellant- Ajanti Bai (A-3) got the her feotus aborted by giving her medicine that too without informing her. The aforesaid statement of the victim (PW-01) has duly been supported the medical evidence available on record i.e. her MLC report (Ex.P/10), wherein it has clearly been opined that the victim (PW-01) had suffered sexual intercourse and she had aborted 05 months’ pregnancy, which is duly supported and proved by Dr. Rosa Toppo (PW-10), who has medically examined the victim and gave MLC report (Ex.P/10). Further, the victim (PW-11) was also subjected to lengthy crossexamination, but she remained consistent in her version and, therefore, her testimony inspires confidence and can be relied upon to hold the appellants herein guilty for the offences in question. As such, on the basis of aforesaid evidence available on record, the findings recorded by the learned trial Court that appellant- Amar Sai (A-1) is guilty of having committed sexual intercourse with the

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Page No.10 of 13

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victim (PW-01) and further threatening her and also in holding appellant- Ajanti Bai (A-3) guilty of getting victim’s feotus aborted alongwith appellant- Amar Sai (A-1) by administering her medicine that too without informing her, is strictly in accordance with law. We do not find any illegality or perversity in the said findings recorded by the learned trial Court and, therefore, both the appellants, namely, Amar Sai (A-1) and Ajanti Bai (A-3) have rightly been held guilty for committing offences under Section 376(2(f), 506, 313/34 of IPC and under Section 313 of IPC respectively. Consequently, we hereby affirm the said finding.

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As regards Question No.02:

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(13) Now, the next question for consideration would be whether the respective sentences awarded to the appellants for the offences under Section 376(2)(f) of IPC as also under Section 313 of IPC by the learned trial Court is in accordance with law or same can be reduced, as contended by learned counsel for the appellants ?

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(14) In order to answer this plea it would be appropriate to notice Section 376(2)(f) & 313 of IPC, which reads as under:

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“ 376. Punishment for rape. - (1) xxxx

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(2) Whoever,-

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(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or

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shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean

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imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.

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313. Causing miscarriage without woman’s consent.Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

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(15) Reverting to the facts of the present case in light of the above quoted provisions, it is quite vivid that appellant- Amar Sai (A-1) was aged about 45 years at the time of commission of offence and appellant- Ajanti Bai (A-3) is a lady aged about 40 years at present and, therefore, their chances of reformation cannot be ruled out and while awarding sentence of 14 years’ RI, the learned trial Court has neither recorded any special reason nor any mitigating/extraordinary circumstance, whereas the minimum sentence prescribed is 10 years’ RI for offence under Section 376(2) (f) of IPC and for offence under Section 313 of IPC the accused can be sentenced with imprisonment for either description for a term which may extend to 10 years and further there is no material brought on record to show that the appellants herein had any other criminal antecedents, therefore, we are of the considered opinion that 10 years’ RI (i.e. the minimum sentenced prescribed) would be adequate punishment/sentence in the instant case for appellantAmar Sai (A-1) for having committed offence under Section 376(2)(f)

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Page No.12 of 13

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of IPC and 03 months’ RI would be proper punishment/sentence for both the appellants- Amar Sai (A-1) and Ajanti Bai (A-3) for having committed offences under Section 313/34 & 313 of IPC respectively. We hereby hold accordingly.

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(16) Consequently, while affirming the conviction of appellantAmar Sai (A-1) under Section 376(2)(f) of IPC, we award him the sentence for 10 years’ RI by reducing it from 14 years’ RI, but the fine sentence and default stipulation, as imposed by the learned trial Court, shall remain intact. Further, while affirming the conviction of both the appellants- Amar Sai (A-1) and Ajanti Bai (A3) under Sections 313/34 & 313 of IPC respectively, we award them sentence of 03-03 months’ RI by reducing it from 03 years’ RI, but the fine sentence and default stipulation, as imposed by the learned trial Court, shall remain intact. The conviction and its respective sentence, as imposed by the learned trial Court, on appellant- Amar Sai (A-1), for having committed offences under Section 506 of IPC, alongwith the direction of the learned trial Court that all the sentences shall run concurrently, shall also remain intact/as it is.

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(17) Consequently, both the criminal appeals are partly allowed to the extent indicated herein-above.

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(18) Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned as well as to the

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Page No.13 of 13

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Superintendent of Jail where the appellant is languishing for necessary information and action, if any.