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2022 DIGILAW 58 (CHH)

Arun Gond, S/o. Premlal Gond v. State of Chhattisgarh

2022-01-28

ARVIND SINGH CHANDEL, RAJENDRA CHANDRA SINGH SAMANT

body2022
JUDGMENT : RAJENDRA CHANDRA SINGH SAMANT, J. 1. All the three appeals are being heard and decided by this common judgment as these appeals have arisen from common judgment of conviction and order of sentence dated 22.01.2019, passed by the Court of learned Special Judge (Protection of Children from Sexual Offence Act, 2012) Bilaspur, District – Bilaspur (C.G.) in Special Criminal Case No.451/2014, convicting the appellants (in Cr.A. No. 306 of 2019 and Cr.A. No.12 of 2020) under Sections Section 363, 392, 120-B and 376 (D) of the Indian Penal Code and Section 6 of Protection of Children from Sexual Offences Act, 2012 and sentencing them to undergo R.I. for 5 years with fine of Rs.500/, R.I. for 5 years with fine of Rs.500/-, R.I. for 5 years with fine of Rs.500/- and life imprisonment with fine of Rs.500/-, respectively with default stipulations and in (Cr.A. No. 706 of 2019), the appellant is convicted and sentenced under Sections 376 (D) of the Indian Penal Code read with and Section 6/17 of Protection of Children from Sexual Offences Act, 2012, under Section 363, 392 and 120-B of the Indian Penal Code and sentencing him to undergo life imprisonment with fine of Rs.500/-, R.I. for 5 years with fine of Rs.500/-, R.I. for 5 years with fine of Rs.500/- and R.I. for 5 years with fine of Rs.500/- respectively with default stipulations. 2. According to the prosecution case, on 12.11.2014, the minor prosecutrix, aged 12 years along with her sister, aged 4 years were on their way to home at about 5 PM in the evening. The appellants abducted the minor prosecutrix and her sister, took them to a lonely place. It is alleged that all the appellants gang raped the minor prosecutrix and during that incident, the locket worn by the minor prosecutrix was also looted by the appellants. All the incident occurred in unison as a result of a conspiracy. The minor prosecutrix and the victim came back home on the morning of the next day and informed about the incident to father Punit Ram Nishad (P.W.-1), who gave written complaint (Ex.P-2) in the Police Station Bilha. Unumbered FIR (Ex.P-1) was also lodged by Punit Ram Nishad (P.W.-1). The police has investigated the case and the spot map was prepared at the instance of the minor prosecutrix. The minor prosecutrix was subjected to medical examination. Unumbered FIR (Ex.P-1) was also lodged by Punit Ram Nishad (P.W.-1). The police has investigated the case and the spot map was prepared at the instance of the minor prosecutrix. The minor prosecutrix was subjected to medical examination. One mobile belonging to the appellant - Arun Gond was seized from the spot. On the basis of the discovery statement given by the appellant – Arun Gond, the locket was seized at his instance. Proof regarding date of birth of the prosecutrix was collected. The minor prosecutrix was also examined under Section 164 of Cr.P.C. by the Judicial Magistrate First Class. The test identification parade of the appellants was conducted by the Executive Magistrate. The statement of the prosecutrix and witnesses were recorded under Section 161 of Cr.P.C. Vaginal slide of the minor prosecutrix and the undergarments of the appellants were also seized, which were sent for FSL examination. After completion of investigation, charge-sheet was filed against the appellants. 3. The learned trial Court framed charges against the appellants Arun Gond and Deepak Tiwari under Section 6 of POCSO Act, Sections 376(D) in the alternative Section 376, 363, 392 and 120-B of I.P.C. and against the appellant- Ashwini Gond under Section 376D of I.P.C. read with Section 06/17 of POCSO Act, Sections 363, 392 and 120-B of I.P.C. 4. All the appellants denied the charges and pleaded not guilty. The prosecution examined 23 witnesses. On completion of prosecution evidence, the appellants/accused persons were examined under Section 313 of I.P.C. in which they denied all the incriminating evidence present against them and also their ignorance about the prosecution. It was stated that all the appellants are innocent who have been falsely implicated because of some previous enmity. No witness was examined in defence. The learned trial Court after giving opportunity of hearing to the prosecution and defence has passed impugned judgment convicting and sentencing the appellants as mentioned here-in-above. 5. Learned counsel for the appellants in all the cases submits that the conviction of the appellants in all three cases is bad in law. The star witnesses of this case is the victim (P.W.-3) and her sister (P.W.-4) are not reliable witnesses and their statement does not inspire confidence, therefore, the conviction against the appellants is without any basis. Hence, all the appellants are entitled for acquittal. In the alternative, it is argued that the incident in this case is dated 12.11.2014. The star witnesses of this case is the victim (P.W.-3) and her sister (P.W.-4) are not reliable witnesses and their statement does not inspire confidence, therefore, the conviction against the appellants is without any basis. Hence, all the appellants are entitled for acquittal. In the alternative, it is argued that the incident in this case is dated 12.11.2014. The provisions for enhanced punishment under Section 376 D of I.P.C. for Gang Rape was amended in the year 2019. Whereas, in the provision prior to this amendment, the minimum sentence to be imposed for the gang rape was 10 years only. The learned trial Court has sentenced the appellants on the higher side with life imprisonment for the offences under Section 376 D of I.P.C. and Section 6 of the POCSO Act, jointly. Under Section 06 of the POCSO Act, there is provision for minimum sentence of 10 years, which may extend to imprisonment for life. Taking into consideration, the age of the appellants themselves and also that they are in jail since about 07 years, therefore, imposition of minimum sentence of 10 years would be sufficient for the purpose of this case. The amendment of I.P.C. in the year 2019 does not have any retrospective effect, hence, it is submitted that in case this Court is not inclined to acquit the appellants in their appeals, in that case, the sentence imposed upon the appellants may be reduced and the appeals be allowed with modification. 6. Learned State counsel opposes the submissions and submits that minor victim (P.W.-3) in this case was age about 10 years on the date of incident, she has clearly supported the case of prosecution by making an unrebutted statement against the appellants and further, her statement has been corroborated by another witness P.W.-3 i.e. sister of the victim as well as Dr. Geeta Pradhan (P.W.-9), hence, there is no case present for acquittal of the appellants from any of the charges. Hence, all the appeals be dismissed. 7. Heard learned counsel for the parties and perused the documents present on record. 8. Considered on the submissions. Geeta Pradhan (P.W.-9), hence, there is no case present for acquittal of the appellants from any of the charges. Hence, all the appeals be dismissed. 7. Heard learned counsel for the parties and perused the documents present on record. 8. Considered on the submissions. On perusing the evidence present in the record of the trial Court, it is found that the prosecutrix (P.W-3) was of age 12 years on the date she was examined, she clearly identified the appellants in the Court and has stated about the incident in which she herself and her sister (P.W.-4) were abducted and taken to a mining area. Where the appellant- Deepak Tiwari raped her and also looted her locket. She has further stated about involvement of other appellants, who were present and had threatened the victim to submit to their wishes. Her statement has remained unrebutted in cross-examination. 9. Sister of the victim (P.W-4) has supported the statement of prosecutrix (P.W.-3) on the point of abduction and she has also identified all the appellants. 10. Punit Ram Nishad (P.W.-1) is the father of the minor prosecutrix (P.W.-3) and another minor witness (P.W.-4), who has stated that his daughters were missing, regarding which he had lodged an F.I.R. vide Ex.P/1, he also filed a written complaint Ex.P/2 informing that his daughters have come back and had informed, that his daughter i.e. P.W.-3 was raped and her articles- one golden locket and one another were looted. This witness has not made any statement in the Court otherwise, the statement given by him has remained unrebutted in cross-examination. Lodging of F.I.R. vide Ex.P-1 and the written complaint given vide Ex.P/2 has been the ground for initiation of investigation procedure. 11. The prosecutrix (P.W.-3) was medically examined by Dr. Geeta Pradhan (P.W.-9). She has stated that the prosecutrix was aged about 10 years, who had various injuries of abrasions over her body and she was complaining of pain in her chest. On examining her private part, the witness found that there was fresh tear present in the hymen, which was bleeding. The victim felt pain in the finger test. The vaginal slabs were prepared. Vide report Ex.P/18, this witness has opined that the victim was forcibly raped within 24 hours. In cross-examination, her statement has remained unrebutted. On examining her private part, the witness found that there was fresh tear present in the hymen, which was bleeding. The victim felt pain in the finger test. The vaginal slabs were prepared. Vide report Ex.P/18, this witness has opined that the victim was forcibly raped within 24 hours. In cross-examination, her statement has remained unrebutted. The adverse suggestion given and answer of this witness does not lead to any conclusion that her statement in examination-in-chief stands rebutted. The statement of the victim P.W.-2 is fully corroborated by the Dr. Geeta Pradhan (P.W.-9). There appears to be no dispute present that the age of the victim had been about 10 years at the time of incident, hence, she was of age below 12 years. 12. Baldeo Prasad Yadav (P.W.-12) in-charge head master has proved from the school records that the date of birth of the minor victim was 03.05.2002. His statement has been remained unrebutted in cross-examination. 13. The father of the victim (P.W.-1) has stated that the age of her victim was 12 years, he has not stated anything about her date of birth. Similarly, mother of the victim (P.W.-2) has made a statement of approximate age of the prosecutrix being 10 to 11 years. 14. The prosecution is relying on the date of birth recorded in the school records. According to this, date of birth of prosecutrix which is 03.05.2002 on the date of incident that is 12.11.2014, it would be seen that the age of the prosecutrix was above 12 years, this fact needs consideration. 15. There is a clear statement of prosecutrix (P.W.-3) that her locket was looted by appellant- Deepak Tiwari. While the other two appellants were present. 16. Inspector - Dilip Chandrakar (P.W.-13) has stated that appellant- Arun Gond made statement of memorandum vide Ex.P/20 and from his possession, the locket was seized vide Ex.P/22. 17. Suresh Nishad (P.W.-11) is a hostile witness, however, the statement of Dilip Chandrakar (P.W.-13) has remained unrebutted in cross-examination and no claim has been placed by the appellants on the seized article, that is the gold locket. It is suggestive that the possession of the locket with the appellant- Arun Gond was not valid in any respect and this is an indirect corroboration to the statement of prosecutrix (P.W.-3). 18. It is suggestive that the possession of the locket with the appellant- Arun Gond was not valid in any respect and this is an indirect corroboration to the statement of prosecutrix (P.W.-3). 18. Yugal Kishore Urwasa (P.W.-19) is the Executive Magistrate, who has conducted the test identification parade in which the prosecutrix (P.W.-3) identified the appellants vide Annexure-P/9. He also conducted the T.I.P. of the seized locket which was identified by Punit Ram Nishad (P.W.-1) vide Annexure-P/51. In cross-examination, he has denied the adverse suggestions. Therefore, his statement in examination-in-chief has remained unrebutted. 19. The prosecutrix (P.W.-3) has stated in her examination-in-chief about identifying the appellants vide Annexure-P/9, this statement has not been challenged in cross-examination, therefore, the evidence regarding the identification of the appellants by the prosecutrix (P.W.-3) is fully established. 20. Punit Ram Nishad (P.W.-1) has not been questioned by the prosecution regarding identification of the locket, however, the statement of the I.O. Dilip Chandrakar (P.W.-13) is unrebutted on this point, which can be believed. 21. There is evidence present to show that all the appellants were present together when the minor prosecutrix (P.W.-3) and her sister (P.W.-4) both were abducted and taken to a lonely place. All of them accompanied during the time, when the minor prosecutrix (P.W.-3) was raped by appellant- Deepak Tiwari and also the time when the locket of the minor prosecutrix was looted by him. Later on, the same locket has been found in possession of the appellant- Arun Gond. Hence, this appears to be a case, in which all the appellants were in agreement regarding the commission of the offences of rape and loot, which completes the ingredients for the commission of offence of criminal conspiracy and further the commission of offences by appellant Deepak Tiwari was fully supported by the appellants- Arun Gond and Ashwini Gond, which shows their act of furthering the common intention. Therefore, We are of the view that the offence of rape of minor victim has been committed by the appellant- Deepak Tiwari in which the appellants- Ashwini Gond and Arun Gond both have acted in furthering the common intention and also were in agreement in commission of offences of rape and loot. Hence, conviction of the appellants in the respective charges by the learned trial Court does not suffer from any infirmity, which is liable to be confirmed and is confirmed by this Court. 22. Hence, conviction of the appellants in the respective charges by the learned trial Court does not suffer from any infirmity, which is liable to be confirmed and is confirmed by this Court. 22. Considered on the alternative submissions of the learned counsel for the appellants praying for reduction of sentence. The submissions that the offence of gang rape under Section 376 D of I.P.C. is an amendment of year 2019 by itself is not correct. This provision under Section 376 D of I.P.C. has been amended and incorporated in the Code by Criminal Law Amendment act, 2013 and which came into effect from 03.02.2013, therefore, on the date of incident that is 12.11.2014, the offence of gang rape that has taken place is covered under the amended provision of Section 376 D of I.P.C. which also defines that one or more persons constituting a group or acting in furtherance of common intention, each of them shall be considered as having committed the offence of gang rape and the minimum punishment prescribed is 20 years, which may extend to life. Hence, there is no legal ground present for reduction of sentence. Hence, after the discussions made here-in-above and on the basis of the conclusions drawn here-in-before, we do not find any substance in these appeals. Therefore, all these Criminal Appeals are dismissed. 23. With these observations, all these Criminal Appeals stand disposed off.