HIGH COURT OF CHHATTISGARH, BILASPUR Criminai Appeal No.108 of 2005 APPELLANT: Pardeshi Slo Mahendra Manikpuri aged (In Jail) about 20 years, resident of Bhatupara, Ambikapur Surguja. Versus RESPONDENT: The State of Chhattisgarh Through the District Magistrate Ambikapur (CG). Criminal Appeal No.227 of 2005 APPELLANTS: 1. Prakash Kumar @ Motu, Aged about 30 (in Jail) years, S/o Vijayram, Rlo Manipur. Ambikapur, P.S. Ambikapur, Distt. Surguja, C.G. 2. Uddeshwar @ Bhanta, Aged about 20 years, S/o Mehilal, R/o Bhathupara. Ambikapur, P.S. Ambikapur, Distt. Ambikapur, C.G. Versus RESPONDENT: The State of Chhattisgarh Through the District Magistrate Ambikapur (CG). Criminal Appeal No.231 of 2005 APPELLANTS: 1. Dara Singh son of Bulchu Aged about 20 (In Jail) years, Resident of Bhathupara, Ambikapur. District Surguja (C.G.). 2. Baran Ram Son of Shobhit Ram, Aged about 19 years, Resident of Bhathupara, Ambikapur, District Surguja (C.G.). Versus State of Chhattisgarh, Through the Police Station Ambikapur. District Surguja (C.G.). RESPONDENT: AND Criminal Appeal No.42 of 2006 APPELLANT: Bharat Ram Son of Shri Durjan Ram, aged about 20 years, Resident of Bhathupara, Ambikapur, District Surguja (C.G.) (In Jail) Versus RESPONDENT: State of Chhattisgarh, Through the Police Station, Ambikapur, District Surguja (C.G.) {Criminal appeals under Section 374 (2) of the Code of Criminal Procedure, 1973} Present: Mr. Sunil Sahu, counsel for the appellant in Cr.A.No.108/2005. Mr. Jitendra Shrivastava, counsel for the appellants in Cr.A. No.227/2005.' Mr. V.K. Pandey, counsel for the appellants in Cr.A.No.231/2005. Mr. Rahul Mishra counsel for the‘appellant in Cr A No 42/2006 Mrs Madhunlsha Singh Panel Lawyer forthe State/respondent Division Bench: - Hon’ble Mr. T.P. Sharma and Hon’ble Mr. R.N. Chandrakar, JJ ORAL JUDGMENT (24—8—201 1) T.P. Sharma, J: - 1. Since all the above criminal appeals are arising out of the same judgment dated 3-2-2005 passed by the 3rd Additional Sessions Judge (FTC), Ambikapur. in Sessions Trial No.377/2003, they are being disposed of by this common judgment. 2. By the aforesaid judgment of conviction and order of sentence, learned Additional Sessions Judge has convicted the appellants under Section 376 (2) (g) of the IPC and sentenced appellants Dara Singh, Baran Ram & another accused Sunil @ Sanjay, whose case was subsequently transferred by this Court to the Juvenile Justice Board, to undergo imprisonment for life & pay fine of Rs.5,000l— each, in default of paymééht of fine to further undergo Rlfor two years. Other appellants have also been convicted under Section 376 (2) (g) of the IPC sentenced to undergo Rl for ten years & pay fine of Rs.2,000l— each, in default of, payment of hne to further undergo Rl for one year. 3. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellants, and thereby committed illegality. 4. As per case of the prosecution on 21-7—2003 at about 9 pm the prosecutnx (PW—3) went to Village Bhathupara along wrth Ramesh Lakra (PW-4) for short stay at night in the house of her stepmother Tlngo - (mausi).., After completing her work in the bank, when the prosecutrix went to the house of her stepmother Tingo, she heard some sound from the house of her step mother on which she went back to the bus stand along with Ramesh Lakra (PW-4), at that time, five accused persons were sitting near the hand pump, out of five accused persons, one person caught hold of her and dragged her towards back portion of a house where he committed rape on her. After commission of rape by one accused, two other accused persons reached to the spot and committed rape on her. Thereafter, they conhned her and were moving here & there. They have also committed robbery of the atticles, which the prosecutrix was carrying. They aiso restrained and assaulted Ramesh Lakra (PW-4), but some how he tied away from the spot and informed the police. After some time, poiice came whom she informed the incident and lodged FIR vide Ex.P-4. The prosecutrix was sent‘for medical examination and she was examined by Dr. Mrs. Shakuntala Xalxo (PW—8) vide EXP-15 who found that secondary sexual characters of the prosecutrix were well developed, hymen was old torn, vagina admits two fingers easily and that she was aged about 27 years. The doctor has not given any definite opinion relating to commission of recent sexual intercourse upon the prosecutrix. Appellants Dara Singh, Baran Ram, Bharat Ram & Pintu @ Dilip Kumar were subjected for identification, the prosecutrix (PW-3) & Ramesh Lakra (PW—4) have identified them vide Ex.P-5. During the course of investigation, undergarments of the appellants were seized and they were sent for medical examination. Memorandum statements of Baran Ram, Sanjay, Bharat Ram, Dara Singh & Pintu were recorded. . Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Chief Judicial Magistrate, Ambikapur who committed the case to the Court of Sessions, Ambikapur from where learned Additional Sessions Judge received the case on transfer for trial. . In order to prove the guilt of the accused, the prosecution has examined as many as ten witnesses. The accused were examined under Section 313 of the CrPC in which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question. . After affording opportunity of hearing to the parties, learned Additional Sessions Judge, while acquitting the appellants under Section 392 read with Section 34 of the IPC, convicted the appellants under Section 376 (2) (g) of the IPC and considering the act of commission of rape by appeliants Dara Singh, Baran Ram & another co-accused Sunil @ Sanjay, sentenced them to undergo imprisonment for life & pay fine of Rs.5,000/- each, in default of payment of tine to further undergo RI for two years, and aiso sentenced the other appeilants to undergo RI for ten years & pay fine of Rs.2,000l— each, in default of payment of fine to further undergo RI for one year. 7 8. During the pendency of appeais, at the instance of accused Sunii @ Sanjay, enquiry relating to his age was conducted and he was found c beiow the age of 18 years at the time of commission of the offence. $i Therefore, his case was sent to the Juvenile Justice Board, Ambikapur under Section 20 of the Juvenile Justice (Care and Protection 05f Children) Act, 2000, in Cr.A.No.1 12/2005. 9. Warrant has been issued against appellant Bharat Ram and he has been arrested in compliance of the warrant by Police Station Ambikapur. Constable Chatrapal Singh of Police Line Ambikapur has produced appellant Bharat Ram in custody. 10.We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 11.Mr. V.K. Pandey, learned counsel appearing on behalf of appellants Dara Singh & Baran Ram in Cr.A.No.231/2005, submits that evidence of the prosecutrix (PW-3), who was not known to the appellants, does got inspire confidence and it is not trustworthy. Evidence of the prosecutrix (PW—3) & Ramesh Lakra (PW—4) is not sufficient for conviction of the appellants for commission of gang rape. Mr. V.K. Pandey furtherl submits that appellants Dara Singh & Baran Ram are in custody since 27-7-2003, they have been convicted under Section 376 (2) (g) of the IPC and sentenced to undergo imprisonment for life along with hne, thereby, the trial Court has imposed harsh sentences upon them. Mr. V.K. Pandey also submits that considering the incident their sentence requires reconsideration. 12.Mr. Sunil Sahu, learned counsel appearing on behalf of appellant Pradeshi in Cr.A.No.108/2005; Mr. Jitendra Shrivastava, learned counsel appearing ion behalf of appellants Prakash Kumar @ Motu & Uddeshwar @ Bhanta in Cr.A.No.227/2005; and Mr. Rahul Mishra, learned counsel / t appearing on behalf of appellant Bharat Ram in Cr.A.No.42/2006 submit that conviction is based on evidence of the prosecutrix (PW—3) & Ramesh Lakra (PW-4) who have not identified all the appellants at the time of commission of incident, only four accused persons have been identified vide test identification parade Ex.P-5 and remaining accused persons were not subjected to identification. The prosecutrix has not identified remaining accused/appellants in the Court, only Ramesh Lakra (PW-4) has identified all the appellants in the Court. Even as per evidence of' the prosecutrix (PW-3) & Ramesh Lakra (PW—4), three appellants had committed rape upon the prosecutrix, other appellants have detained & restrained Ramesh Lakra (PW-4) and have caused injuries to him, they have not accompanied other appellants and had not committed rape. In these circumstances, if evidence of the prosecutrix (PW-3) & Ramesh Lakra (PW—4) is considered as gospel truth, same is not sufficient for conviction of the remaining appellants under Section 376 (2) g) ofthe IPC. t3.0n the other hand, Mrs. Madhunisha Singh, learned Panel Lawyer appearing on behalf of the State/respondent, opposes the appeals and submits that in case of conviction under Section 376 (2) (g) of the IPC, the prosecutionis not required to prove that each of the accused has committed'rape upon the prosecutrix, the prosecution is required to prove intention for commission of alleged offence and in furtherance of such intention, commission of rape by one or more than one accused is sufficient to constitute the offence of Section 376 (2) (g) of the IPC. Mrs. Madhunisha Singh further submits that evidence adduced on behalf of the prosecution is sufficient to prove the fact that all the appellants have committed gang rape upon the prosecutrix punishable under Section 376 (2) (g) of the IPC and the trial Court has rightly convicted & sentenced the appellants. 14.ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 15.As per evidence of the prosecutrix (PW-3), the appellants were ,not previously known to her, on the fateful day, after completing her bank work, on account of odd time of night, she decided to stay at Bhathupara in the house 'of her relative Tingo, she went to the house of Tingo along with Ramesh Lakra (PW—4), they heard sound coming from inside the ( 6 house of Tingo and they returned back, they were going towards the bus stand for reaching to their destination and when they were passing besides the hand pump, appellants Dara Singh, Baran Ram & juvenile offender Sunil @ Sanjay whom she had identified were present near the hand pump. Dara Singh caught hold of her and dragged her to back portion of one house where after removing her clothes & articles, he committed rape on her. As per her evidence, Dara Singh has also committed unnatural offence with her. Thereafter, appellant Baran Ram committed rape on her and thereafter, juvenile offender Sunil @ Sanja committed rape on her. After commission of rape by Sunil @ Sanjay, he told that he will call other persons and he left the spot, they were compelled to move her from here and there, she saw the vehicle of police and finally she informed the incident to the police. in the test. identmcation she has identified appellants Dara Singh, Baran Ram & juvenile offender Sunil @ Sanjay. 16‘Ramesh Lakra (PW—4) has substantially corroborated the evidence of the prosecutrix (PW—3) and has deposed that appellant Dara Singh caught hold of the prosecutrix and dragged her towards one house, other appellants surrounded him and assaulted him. After some time, appellant Baran Ram & juvenile offender Sunil @ Sanjay went towards the place of incident where Dara Singh dragged the prosecutrix. Other accused persons were trying to take him by scooter to another place then some how he rescued himself and reached near the bus stand where he saw the police and informed them about the incident. They searched for the prosecutrix and after some time they succeeded in search. Ramesh Lakra (PW—4) has further deposed that he has identified Dara Singh, Baran Ram & Pintu in test identification and he has identined all the appellants in the Court. 17.Defence has cross-examined these witnesses at Iength, but has not been able to succeed to elicit in their cross-examination to discredittheir testimony to the extent that appellants Dara Singh & Baran Ram have not committed sexual intercourse with the prosecutrix without her consent & will along with the another juvenile offender. 18.The prosecutrix (PW-3) has lodged FIR vide Ex.P-4 just after the incident in which she has specmcally informed the police that five persons were / sitting near the hand pump, out of five, one caught hold of her and yy l dragged her towards some road and committed rape on her, thereafter, two persons came and committed rape on her. She has not stated anything relating to commission of unnatural offence by appellant Dara Singh in her FIR EXP—4. As per evidence of Ramesh Lakra (PW—4). appellant Dara Singh dragged the prosecutrix towards some house, after some time other two accused Baran & Sunil proceeded towards the place of incident, remaining accused surrounded him and assaulted him, even they‘were trying to shift him to another place by jeep. 19.Evidence of these witnesses and the FIR lodged by the prosecutrix reveal that firstly one appellant Dara Singh dragged the prosecutrix and committed rape on her, thereafter, appellant Baran Ram & juvenile offender Sunil @ Sanjay proceeded towards the spot from the hand pump and they committed rape on the prosecutrix. Other appellants were present near the hand pump. they surrounded Ramesh Lakra (PW— 4) and also assaulted him. Aforesaid three accused- persons have not committed rape on the prosecutrix near the hand pump. The prosecution has not adduced any evidence to show or prove that all the appellants have decided to commit rape on the prosecutrix or even they were having knowledge that at that particular time. the prosecutrix will come near the place of incident or near the hand pump and they will commit the aforesaid offence. Evidence of aforesaid witnesses clearly reveals that hrstly rape was committed by Dara Singh, thereafter, by two other accused persons namely Sunil @ Sanjay —- juvenile offender & appellant Baran Ram, and that other accused persons/appellants were present near the hand pump and even they have not proceeded towards the place of incident. 20.ln these circumstances, it is difficult to hotd that three persons have committed gang rape upon the prosecutrix in furtherance of common intention of remaining other appellants. The prosecution is required to prove its case beyond all reasonable doubts. However, in the ‘present case, evidence adduced on behalf of the prosecution relating to other appellants except appellants Dara Singh, Baran Ram & juvenite offender Sunil @ Sanjay, is sufficient to cast suspicion that other appellants ma'y have committed gang rape upon the prosecutrix, but is not sufficient to prove thefact that they have also committed gang rape or that the aforesaid three accused persons have committed gang rape in 8 furths ‘e of common mtentmn of other “emammg appellants There Is difference between cup and hp 21.ln absence of any conciusive evidencn convnctlon and sentences Imposed upon appellants Bharal Ram Prakash Kumar @ Motu Uddeshwar @ Bhanta & Pardeshl vnder qectlon 376 (2) (g) of the IPC are not sustamable under the law. tMdence adduced on behalf of the prosecution is sufficient to prove the ”fact that appellants Dara Singh & Baran Ram along with juvenile offender Suml @ Sanjay have committed; gang rape upon the prosecutrlx punishable under Section 376 (2) (g) of the IPC While conwctrng appellants Dara Singh & Baran Ram under Section 376 (2) (g) of the IPC the trial Court has not committed any illegality However while convnctmg appellants Bharat Ram Prakash Kumar @ Motu Uddeshwar @ Bhanta & Pardeshr under Section 376 (2) (g) of the IPC the trial Court has committed illegality. 22.As regards the question of sentences imposed upon appellants Dara Singh & Baran Ram, the trial Court has sentenced each of them to undergo imprisonment for life & pay fine of Rs.5,000/—, in default of payment of fne to further undergo Rl for two years At the time of commisSion of such offence age of appellants Dara Singh Baran Ram was 20 years & 19 years, respectively. This is not the exceptaonal case requiring exemplary sentence or maximum sentence prescribed under the law ConSIdering the aforesaid facts sentences Imposed upon appellants Dara Singh & Baran Ram reqUire reconsideration 23.Consequently, Cr.A.Nos.108/2005, 227/2005 & 42/2006 deserve to be allowed and they are hereby allowed. Conviction & sentences imposed upon appellants Pardeshi, Prakash Kumar @ Motu, Uddeshwar @ Bhanta & Bharat Ram are hereby set aside they are acquitted of the said charge and they be set at liberty forthWith if not required in any other case Appellant Bharat Ram has been produced in custody, he be released immediately ‘ 24.CrLA.No.231/2005 is partly allowed. Conviction of appellants Dara Singh & Baran Ram is hereby maintained. However, instead of sentence of imprisonment for life & fine of Rs.5,000l— each, they are hereby sentenced to undergo minimum sentence of imprisonment i.e. Rl for ten years provided under Section376 (2)’(g) of the IPC and pay fine of Rs.5,000/— each, in default of payment of tine to further undergo Rl for two years Appellants Dara Slngh & Baran Ram are in custody since 27- 7-2003. They shall be entltled for set off for the period of detention already undergone by them. Sc” f Rangnath Chandrakar Judge l Sd/- l T P Sharma l Soma