XI-HC—78 ^TI^T^Tf^i^ ^^ 3ff^¥f^^W Tc^ ^ww^, ^•cfi'yli<s, (s)0i^^< HJ^<»1|( 9bN(ch ^.:..e^......^.c!..i •^ 200Lr 3^?r x^r^ ((ic<?l^<sr) ??gRR'H(?<T3nt?r Appeal Ko. of APPELLANT IN JAIL RESPONDENT •Present: Mr, Al^hay Tiwari, lcj Mr. Sudhii' Bajpai, Dhirendra Mishra, J agai|:is' This appeal under Procedure is directed of seuteiice dated 30th wherebv leained Secoud has convicted the appella|at th.e ladian Penal Code year, to aindergo'R.L for respectively, ui default of| fbr 2 L2 yeaits, aiit:l ^r£jfepft?i'^^i ^fe^ iRi^i< '^'^tSi'RT'2^1 Raniclev S/o Lalsai, Aged about21 yem's, Occupation Labour, R/o Lamori., P.S. Basaiitpzir, Teh. Pal, Distt. Sai-gi.ija(C.G.) The State of CIihattisgarh, Throiigh: S.H.O. P.S. Shartkai'garh, Distt-Sai'guja (C. G.) anied couiisel for appeUaiit. ?y. GA, forthe State/respondent lt>v 0$AL JUDGMENT 31th May 2007) |Section 374(2) of the Code of Crimiiial ?t th.e judgment ofconviction and order Se|ptember 2004 passed in S.T.No. 136/02 Adclitional Sdssions Judge, Anibikapur imder Sections 342 aad 376 (2)(g) of ;oi|:l seutenced him to uudergo R.I, for oiie p.0 years ancl pay a firie of Rs.50,000/-, [paym.ent of fiiie to fnrther uudergo' R.I. 3^^T -r^WW^, ^>-^\W\<c, ^<ftW^. ^INdl sbNlch' •^ 200 wiw v^ (4<=s^<s?) ^T^r^^ich ^?T^??^r sFHi^ '^RHW^ri^f^^T 2. AIlegation agaiiist the Anik Kodaku is that on 18.1 of vipag' kidnapped 18 years oM gni kept her in. their captivity for tw< Iier, Co-accused Auil who is a ji tlie Court. ofJuvenile Justice Bc connection with aa. iB.cident of prosecuted for coinmissiDU of the IPC'and iii which he stands ^pellaiit puid aiiother co-accused .12.2001 at about 6.00 p.m. they l|lage Mahadevpur cn tlie gTiiipoiirt, hours aiid iii betiveen gaiig raped |iveuile offender, was prosecutecl io. |ard. It is also not disputed that io. tlie same day, the appeUant was lacoity under Section 394, 397 of ^onvicted. 3. C-ase of tlie. prosecution, resides with her father, On 181 her home. The appeUaiit alojti Paiido aad 3 others came to. 11 belonged to naxal party. Theyj with a towel. Seeiiig this ti^ YadaA/?s house whereupon two h.er aiid took her towaids forestl at tf she shouts. After talcuiR h^r on the eaxlh and raped her ia two hours. After the nicident s] m.cideut to her latlier aad the v^U were caught by the villagers, aiid Raiiide.v. Oii the foUowmi Ex.P/1 of'the' iB.cideut was l^ chi<jf<n41ri H\H^\ ^ ^St {[^^i{ ^sfRrH^n^r in brief, is that the • proseciiti±< 12.2001.'vvhen slie was. preseut at tig. with Hamiath Paado, Devroop ler house ao.cl disclosed that thev tied both the hai'ids of.herfather prosecutrix raii towards Butai )f the ofienders chased eiid caught threateiiiiig that she shall be shot |r to the forest they had tlirown her jtum, Thc.y detained her there for lie retunied home aad naiTa-ted the ^llagers. Both the accused persons L.ater on, tliey were known as Anil day, First Iiifomiatioii Report of ^dged by her father in. the Police GRPRJ— FS/246—2/2007— 50.000. XI-HC—78 '^I^T^Tf^iW ^ff^l^l^^I^ ^. 3^- ^[^|0^, ^xO^tiS, (sj^wy WRW g^.......^:..A..-....a.3..a......-.^ 290^ 3^?T ^TSRF ( ^1^<^) 'i^riW^Tf^ ^?^T Station Basantpur. Sh(j Maiiju Ekka for Biedic^ gave a report of Ex.P/ } prosecutrix was taken ^ vaginal secretion wei| Undergarments of thej possessions vide'Exs.P/i for cheinical exaiiiio.a-tid vide Ex.P/10. was referred to a lady doctor'uamely Dr. P. exam.iiiatiou, wlio after her exaiiiiaatioii [.6, Duriiig iiivestigation, petticoat of tlie 4ito possession vicie Ex.P/11, SUdes of the prepared ajid seized vicle'- Ex.P/5, accuse persons were al.so tal^en iiito j3 & P/4, AH the seized' articles were seiit jn to Foreusic Scieuce Laboratoiy, Raipur 4. After coiapletiiig i Court of Judicial Magist conmiitted the case to. aiid the same was re< Sessions Judge for trial. 5,.. .. Prosecution ia or| accused persons exaii|ii: stateiiient of tlie accuse^l of tlie Cr.P.C. ui whicl( ag^diist limi ui tlie pro false implica.tiou. He Ij liad a :dispiite with tlie were sleepiiig m. the hc| 'they were caught. ^FpfeNh ^F?^^fe^ <rst<^i< ^^^iai^r i|ivestigation. charge sheet ¥/as filed'iii the ^ate First.Class, Raoianiijgaiij wh:o.,io. tuni p:.he Court. of Sessions Judge, Ambikapur leived on traiisfer l3Y leaiiied Aclditional |ler to estabUsh the charges agaiiist the iiaed . 14 witaesses ' in. ail. ThereaJt.er, I Raiiidev was recorded uiider Section 313 he denied the cir'cumstaiices appeaiiiig tecution case aiid pleaded iiiiioceuce mid |as stated that Devroop and Harbiarayaii [coznplam.ant, on the day -of isicident they [ase of Bifao. Pando and due to aaimosiU' XI-HC—78 <3:H^T ^T ^iT^ r^I ^j^I ^^T^ ^K^' 3^" <^|-q|0<q, ^»T{|^^|<S, {s)0|<-|^< — ......C^c:.:^..-....%?.<?...^.. •WMT ^^^••-"-••••--•/--••"—t-t--""-^200 ^ 3?T^?T T^F? (4?<^<^) i^TW^^^I^I 6. After heariiig coiui^ Court coiivictecl aad mentioned above. 7. Learaed counsel foj has beeii fraoied iii tlie a1 laljourer aiid som.ehow e Court. has convicted the iinprisonm.ent of 10 yeaj which is too excessive aiic 8. ' . • Reliao.cc is placed Court ia the matter of E 1994, Cri.L.J,_248 aiid i1 accusecl, even if the co accused/appeUaj.it has b' iii imposition ofjail sente: 9. On tlie oUier haiicl tlie im.pugned judgnient t 10. I have heard leailned perased the mipugiied ju^ 11. T'he prosecutrix hs beeu exaiiiined as P,W. 1, ^5P3fe?^IN 'HP3f^f ^f^^ <Rn^$s< '^'^^i^i^r >el for fhe respective parties, leMTL-ed trial seiiteiiced tlie. accused/appellaiit as ' the. p^ppeUaiit subniits that the appeUaiit )ove offeuce out of anim.ositv7; he is a poor :am.s his liveliliood by labour. The tiial appeUaiit aad senteiiced hiai to undergo s and also. imposed fiiie of'Rs.50,000/", 1 harsh. on the judgment of I-ion^ole'tlie Apex reported iii is argued that cousideriiig the age of tlie Lirt ' reaches to tlie coiiclusioii • that the ^en rightly coiivicted, sonie considera.tioii ice ao.ci fiiie Biay be 'giveii, leamed counsel for the St-ate supported |f trial Court. |ned counsel for both the paities and Igm.ent as also the recoid oftrial Courfc, |s lodged the report of Ex, P/ 1. She has The trial Court assessiiig her age as 16 XI-HC—78 ^T^l ^T f^li^ TO? ^^T'^^l^' 3^T ^N10<4, ?$xf1^^<S, .|sf<71>l<-l^< 'w^rr ^qf^"""""Q:!c-"-a":?"%--?"c4""-""""^ 200t/ 3H^?T ^T^ (^il^^) '^iTW ^rft^ ^T^T state4ieiit an vears recorded her stated io. her evideuce was at home along witl^ Yadav. Anil, Raoidev, their. house aiid eiiquire|d her father t.old them tha't both tiie hands of her fafh They demanded nioney themselves belonguig to weepiiig, ou .which they she is maktiiR noise. SU the appeUajit aiid Aiiii cj passiag fiiroiigh the hou^ not iu his house. Both 4: .took out her clothiiig ai| theY wUl shoot lier, She present is the Cozirt anc| date of incident, caught However, she did uot repeatedly asked aiid clt has ah'eady disclosed op^ Aiiil also dicl. After the id-c regamuig consciousness aiid naiTated the uicidenlt caught hold of her near witiiout admiaisteriiig oatJi, She has tliat the iiicident is of last Year when she her fatlier Balbir aad brother Shivuath H^riiiarayaii, Devroop aiid Jagdish cam.e to about owner of the liouse, whereupou he was the owner. Thereafter, they tied |her from. behuicl and started beatiiig hini. ^Flfepft^ 'RTTOf ^fe^ l^i^R ^^i^r^?^ the threat of shootirig hmi and claimed pie pai-U7 •(Na^cal). Seeiiig this.' slle started tissaulted her ftvice with club saying that raii.away from her house, upon which |iased her, she rari towards fc?rest rivulet >e of neighbour Maiiohar, however,; he was |f them. caught her near tlie rivulet, Tliey |d wanied her of malciag noise otherwise }ias further stated "firsfiy, Razadev, who is wlioiii.she sa\v for tlie first tiaie 011 tlie |hold of her and Raindev toni her paiit." narrate tlie actual act despite bem.i A^iined that whatever has happeiied, she Inly. She furtlier stated that after Ramdev, iilcideiit she becain.e uncouscious aiid after |she came back home at about 8,00 p.m. to her fatlier fhat Ranidev ao.d Anil had ithe rivulet and robbed her honour. The XI-HC—78 '^i^T^rl^TW ^^n ^T^T'^iN' ^ ^' 'S^SS ^||^|0<q, ^Tfl^^KS, {sKy>>l<1^< *1(^dl sbNlcb TF^ 200 3H^?T'C??!^ (^i^<^) '^iTW^fel^?^ accused persons remaine4 tlie night, however, Rajn^ the three of tliem at about Ra<radev were appreheude| to Baikuiitpur aiid tliere^ the report. She has fuif Maoju Ekka who had exa| cross-exaBinied by the pr^ report of Ex.P/ 1. She al^ his penis iato her vagiii<| peuis iiito her vagiiia aiidj aiid they had detaiiied this act twk;e. She hasi defence couusel, ia exam.iiiation-ni-chief Iil suggestion that accused ^ that the appellaj.it mid hi| was seized by the police. hclr whibh 12. PW-2 Balbii- Yadav, the appeUant- aiong with tliem were armed with dar| to be naxals and demaaddd with towel, his daughter -w to tlie''house of ueighbou^ ^l^fd^l'l WTOf^l^t ifat^K ^^tRpi^r^r ui the house of Bifmi Pajido tlirougliout :a37aa, Dashrath and otliers had caught 4.00 ui the momuig. Auil, Jagdish and |i at the' house of Bifaii, tliey were tslsen |tfter, Rajiiarayaiit aad Dashrath lodged tther stated tliat she was tal^en to Dr. exaliiu-iecl her, She was declared hostile aiid ^secutioii, iipon ¥7hich she ad.mitted the ^o stated that the accused had inserted 4 bofh fhe accused had iaserted. tlieii' |they d.id so forcibly wifhout lier •conseiit iii forest. Botli of tiiem had repeated been cross-exajBin.ed at lengtli by the •she has stuck to her version of paragraph 14 .she has deiiied tlie |ersons did not rape her aiid lias stated iiJ3 accom-plice had toni her p.aiit, vvhich fatlier of the prosecutiix, lias stated that ^tliers had coiiie to his house, SOBIC of |.da(club), they Y<7ere clamiiiig tlieniselves money, The-y had tied both his haiids ?jas preseut iii the house, he sent his son to briiig Bioney. Thereaffcer, appeUaiit XI-HC—78 ^n^T^I fr^ic^ ^n ^IT^T ^HI^ 3^'^TFTT^T, ^Tn-M41<S, is)^l'y^< tWR^ ^q^---—»-l-<" •••"••—^"-"-""-^ 2QQ ^ 3n^?r'<^ra? (4c(Il^<^) '^ITW^Tft^ ^T^T Ramdev aad Anil stsrtedj her towaids forest. The^ t.o them. Out of fear he BioniiD.g wheii he retur|ied his house, who told hn|i forest aiid both of theni Balkuntpur had conie b| Thereafter, they caught Rape was committed bj daughter. lu the cross-^ lodge th.e report out of party and they had fhre^ that he did not make. uoise two persons eiicl did n^ would be beaten. He alsl of fear. I-Ie has adm.ilttec Raindev and Aiiil siiic^ stated tliat he recoguizecl. He calls Balbir Mama ill Baikuutpur to Maliadev| house of Balbir who uif<t sin.ee .eyeiiiiig, she was her near forest aiid left caiight by the villagers to Baikiiiitpur. He has <st»Mf<2l<ill'RT^if ^fe^ <M^I< '^^Rf^^i^r chasiag his daughter aiid by cliasiiig took untied hini orily when Rs.200/- was given jlept iii tlie house of the neighbour. Iii th-e his house, he Biet his daughter near i±that the thieves had talcen her towards had raped her. Eight to ten persons froBi ^fore dawn and Biade enquiries froni liini, Itlie tliree froni tlie house of Bifan. Paiido. ^ Anil aad Raindev as uiforiiied by her ^xaBiiiiatiou he has stated tliat he did not |fear as fhe acczised persons belonged to ^teiied him not to report, Me has adziiitted |se wheii his daughter was beiiig chased by K. raise alarni becazise he feared that he jo did not go in search of his daughter out ijtted that he did uot recogiiize accused before. PW-6 Raainarayaii Siiigh has Raio.dev aad Anil as also the prosecutrix. viUage relatiou. They had reached from. |:)UF iii tlie momuig aiid had gone to the ^nned hiBi tliat his daughter was m.issing Ijakeii by accused Raoidev, who hacl raped jher tiiereafter. The. accused persons were tliereafter. He aiid otiiers had talcen theni tbeen declared hostile aiid cross-exaniiiied XI-HC—78 ^I^T ^i ^i^ ^^ ^il^T ^P^N' ^ IN^ 3'SST-^TFTTQ?^, ^x{i^^<S, (sl^l-H^ C->r -A . cb<?^ T^ra^T ^qf^ "•••"--••'"•-s-""--"1-'""-"""^ 200 °r 3?i^?r XRT^ (4?<?1^<^) 'i^TW^fiH^l^r s prosecutrixj after by the prosecutiou iii Ex. P/ 6. He has furUieij before tlieBi that Ramde^ left her thereafter. PW-4| accused persous ck rice aiid money froio. tli^ exaiiiiiied tlie giveu her report of Ex. P/ tora, al^rasiou was pres^ fiiigers she was coBiplai^. preseut on her back ^ exaniination of her vagio^ excessive paiii, possibilit^ secretion were prepared examiiiation she has statl present on Uie private inside tlie vagiiia ajid described in her report., ;m|a pa^t^ 13. Thus, from the corroborated- bv the .tl.iat. of Dr. Maoju Ekka above 011 liie private par by the appeUants upon tl' <^i^f<vi<il<i ^R^ff ^^fe^ ^R^ ^"^i^^i^i \4hicli he has admitted his statement of stated that the prosecutrix had stated and Anil had raped her uear forest aad IDashrath Khairwar has also stated tliat themselves to be uaxals used to coUect villagers. PW-14 Dr. Marijzi Ekka has bcjafter the iacident 011 20. 12.2001 aad had L6. She had uoticed that her liym.en was a.nt on her vagina, 011 uisertion of tivo u^iuig excessive paiii, abrasious were also ^oid she has opiaed 011 the basis of that diie to presence of abrasions aud ofrape was there. Two slides ofvagiiial ^iicl giveu to tlie constable, In the cross- ?d that sweUm.g aiid reddishiiess was not ^ls of tlie prosecutrLx, however, abrasions uearby were prcsent which she has steltemeiit of the prosecutrix which is dufy st.ate|iieiits of her fatlier Balbir (PW-2) as also KPW-14), who i-ioticed iiijuries described |s of-the proseciitiou, commission ofrape ^e prosecutrix is estabtished, r XI-HC—78 ^i^T^Tf^i^ ^lit^^^fe' ^"-Nplf 3'^T ;::qFTT^', ^•<^^<l<'o, (sl'T'il'yy NINdl sbNlcb ,.c^c.:S: "^ 200 <y 3^i?r ^i^ ('^t^^) 'i^iT^R ^ft^ ^ii^r )Utll: 14, Now coiaiag to tl|e aiicl penalt}-, so far as at:^ tlie acciised/appellaiit ^ should have been .' pi concero.ecl, the nianuer other acciised person prosecutrbe, deniaiided assaulted the prosecut^ix thereaft.er, after chasi4g imposition of 10 years sentence prescribed undj( faulted. However, leant deinonstrate aiiy com.pe|liD jail senteiice, 15. Iii tiie Biatter of I-ion^le Apex Court cons|[c considering the fact that |tliey coinniitted the offence. d j'ears RJ. Ho¥7ever, iii t|he oth.er co-accused forced drove her out of her hous aiid thereafter, bintaB.y the considered opiiiiorj convicted the a.ppe.Ilantl '^nfef^? ^TH^ff ^^^^ IJ^^R ^^^1-3R1^| question of im.positioii of jail sentence :gunieut ofcounsel for the appeUaiit th.at ls a 21 year olcl boy ajiid tlierefore, he liishecl witli a lesser jail sentence is |hi \vhich the appellaiit io. associatioii witii had entered iiito the house of flie (iioiiey on the gunpoin.t from. her fatlier, drove her out of her house' an.cl .'l.g raped her toice on the guTipoiiit, Ijail senteuce which is a minimuBi jail Jer Section 376(2)(g) of the IPC camiot be lied counsel for tiie appellaiit could not :|ling reason for leniency io. miposition of }?aju Vs. State of Kaniataka (supra), the |ldering the age ofthe accused aad further ^liey cozild iiot overcoaie fit of passion aiid ^f gaiig rape, reduced the seiitence to 3 present case, the appellaiit aloag with their entiy in the house of the. prosecutrix, ^e oii the guripoiiit chased aiid'caught her [{aped her, in. these circumstances, I aai of th.at leained trial Court has rightly 1-ancler Section 376(2) (g) of the IPC aiicl XI.HC—78 ^n^T^T'^Wi ^T ^iT^I^"^?^ ^ ^ 3^""4|^|^)<4 ^»Tf|^^t(o, fs|<^l^< Nl^dl 5b^(cb •^ 200 3^?T'<?5T^ (^i^<^) '^fTWHft^^l^? SQ seiitenced hmi to undl appeUant under Sectioj appellaiit detaiiied the is ?dso proper, PIowev^r, the appeUaiit who is.. st^ited labourer tii tlie viUagt Rs.50,000/- is admitte4ty be reduced, ?rgo R,I. for 10 years. Convictioii of the [T. 342 of the IPC on Uie fiiidmg fliat the ^rosecutrix -for two hours 011 the gunpoiiit, [r, consideriiig the. socio-ecoiiom.ic status of to be eamnig liis liveKhood as m.ariual background, imposition of peualt)' of y too excessive aj.id the.same deserves. to rsbi 16. In tlie result, coiivictiag the appe31aii| IPC'ancl jail senteuce iijj mipositiou oflm.e ofRs,] is moclified and reducedj lirie to farfher uiidergo '^8<si<n<ii^ "W^if ^fe^ <I^i^K ^ ^t^R 3?i!^[ Impugued juclgment of the. trial Cozirt imder Sections 376(2) (g) aad 342 of the jjiiposed thereon, are mamtahied. However, ,p0,000/- under Section 376(2)(g) ofthe IPC to Rs.5,000/- ajicl m. clefault ofpaymeut of 3?.L for six m.oiiths. The appeal is acc4r€lia-glydisposed of. Sd/- Dhirendra Mishra Judge