IN THE HIGH CO RT OF CHATTISGARH AT BILASPUR mze, mar) E HL 63 99o CRIMINAL WNOJ- /:§)/&[ [2001 \ x @1199 PETITIONERI APPEMNT :— (lN JAIL) -AL SHYAMA@ Shyam Ia! Buntil S/o Dula Ram, Age - 20 yrs. R/o Bodapara NayamUnda Jagdalpur Dlstt Ilaspu (C G ) 3/ {gwbgm‘ @\fab VERSUS 2 ’3 1 0?— RE§P._ONDENT State at Chhattisgarh through RS. Bodhghat (Baster) £ CRIMINAL APPEAL UIS 374(2) Code of Criminal Procedure. CONVICTION Sentences UIS 376 (2N8) l P C 10 Yrs RI alo Rs 500 m defaultmMont R I 3 I MA - n ith HIGH COURT OF CHHATTISGARH AT BILASPUR v Single Bench: Hon'ble Shri DILIP RAOSAHEB DESHMUKH, J. Criminal Appeal No. 1222/2001 Pmknsh Vs. Sfa'l’e of Chha‘H‘isgnrh Criminal Appéal No.1219/2001 Shyamal @ Shyamlal @ Bunfi Vs. S‘m‘fe of Chha‘ffisgarh PRE$ENT : - Shri R.N.Jha, learned counsel for The accused-,appellanf Prakash. Shri Surya Kam' Mishml learned counselfor The accused-appellonf Shyarnal @ Shyamlal @ Bum-l. Shri Ashish Shukla, 6.A./Addl. Public Prosecu'ror' for ‘rhe Smfe. ORAL JUDGMENT (Delivered on 05-05-2006) Bo'l'h fhe abovemenfioned opiaeals are direc‘l'ed agains'r fhe Judgmenf daied 30-10-2001 delivered by Shri A. R. Dhruw, Isl Addifional Sessions Judge, Jagdalpur Disfric‘r-Bos‘lar in Sessions Case Number-347/2001 whereby fhe'appellan'l's Shyamal @ Bunl'i and Prakash were convic‘red for The offence under Section-376 (2)(G) of she IPC and were senfenced 1'0 rigorous impri'sonmen‘r for 10 years each and ‘ro o fine of.Rs.500/- and in defaul‘r of paymenf of fine To undergo addi‘l’ional rigorous imprisonmenT for 6 monThs. 2. Briefly sTaTed The prosecuTion sTory is ThaT on 11—07-2001 aT a 07.30 PM” The prosecuTr'ix, anold lady aged 60 years was cooking food. She heard a knock aT The door and on her asking fhe person {I} 0t knbcking a'r ‘rhe door said “Mo‘rher, I am Bum'i, open The door". The prbsecufrix opened fhe door and found tho‘r 'rhe appellants Bun1'i and Prakash were aT The door. BunTi en'fered The house while Prakash sTood ouTside. BunTi closed The door, opened a knife and sTarTed grappling wiTh The prosecuTrix. She resisTed saying ThaT she was an old lady. In reply The appellanT BunTi said ThaT “Today I would noT ledve you" and pushed The prosequTrix on The ground and raising her saree and lahanga commiTTed rape on her. AfTer commission of rape, TheuppellanT BunTi opened The door and wenT ouTside. ThereafTer, The appellanT Prakash enTered inTo The house and saying ThaT he would also commii sexual inTercourse wiTh her and sTarTed grappling wiTh The prosecu‘Trix who somehow managed To escape from The backdoor. The prosecuTrix immediaTely infOrmed abouT The occurrence To Mangaldae PW-1 and also To M.S.Chand, faTher aT The church. ReporT of The incidenT was lodged by The prosecuTrix on 12-07-2001 aT 12.30 PM. vide EXP-9. On being medically examined Dr. SmT. 5.Das PW-Z did noT find any marks of violence on ther person or privaTe parTs'. Hymen was absenT. She opined ThaT since The prosecuTrix was habiTual of sexual inTercourse, no definiTe opinion abouT rape could be given. Vaginal slides were prepared and > handed over To The ConsTable in a sealed packeT. One underwear was seized from The appellanT BunTi vide Ex.P-6. PeTTicoaT worn by The prosecuTrix aT The Time of occurrence was seized vide EXP-5. Vaginal Slides Underwear of The appellanT BunTi and The peTTicoaT of The prosecuTrix were senT To The ForenSIc Selence LaboraTory Raipur vude memo ExP 18 daTed 17-07 2001 and were recelved aT The Forensic Science LaboraTory, Raipur on 18—07-2001. The prosecuTion did noT produce The reporT of The Forensic Science LaboraTory before The ‘rr-ial Judge. Dr. Vijay Thakur' PW-5 examined The appellan'r Bumi and found naming ‘ro suggest ‘rha'l' he was nof capable of performing sexual infercourse. Affer comple'rion of invesfigufion, ‘rhe appellan‘rs were prosecu‘red and charged under 5ecfion-376 (ZXG) of IPC. The appellan'rs abjured fhe guilf. The prosecu‘rion \ examined 8 wi'rnesses. Re!ying upon 'rhe sole fesfimony of the grosecufrix PW-7 which was dully corrobora‘red by fhe F.I.R. EXP-9, ‘I’he learned frial Judge convicted and sen‘renced The appellanTs as afdrésaid. (Supra) 3‘ ‘Shri RNJha, learned counsel for The appellanT Prakash has argued ThaT The‘TesTimony of The prosecuTrix in para-4 is indicaTive of The facT ThaT she had gone wiTh Bhoia Ram PW-6 for lodging reporT aT The Police STaTion immediaTeiy afTer The occurrence on The same day whereas EXP-9 appears To have been lodged on The nexT day aT 12.30 P.M. Thus, There is no reasonable expianaTion for The delay in lodging The F.I.R. IT was also argued ThaT The TesTimony of The prosecuTrix did noT show ThaT The appellanT Prakash was acTing in concerT wiTh The appellanT BunTi and, Therefore, convicTion of The appellanT Prakash under SecTion-376(Z)(6) of IPC was liable To be seT aside. Reliance was placed on Ashok Kuwar Vs; 5mm of Haryana reporTed in (2003) 2 Supreme Court Cases 143. 4. 5hri Surya KanT Mishra, learned counsel for The appellanT Shyamal @ BunTi argued ThaT failure of The InvesTigaTing Officer To seize The knife alleged To have been used by The appellanT BunTi during The occurrence rendered The TesTimony of’The prosecuTrix unreliable. He also echoed The argumenTs of 5hri R.N.Jha, learned lcounsel for The nppellan‘f Prakash ‘Hmf There was no safisfacmry exphnafion for The dehy in lodging The F.I.R. IT was also poinTed ouT ThaT failure of The prosecuTion To produce The reporT of Forensic Science LaboraTory rendered The TesTimony of The prosecuTr-ix :unreliable. Mangoldae PW—1 To whom The prosecuTrix had narraTed EThe incidenT immediaTely, also did noT supporT The prosecuTion sTory. ~ TIT was also argued ThaT Bhola‘gam PW-6, son of The prosecuTrix, in his examinaTion in chief as also in his cross-examinaTion, did noT supporT The prosecuTion sTory. 5. s On The above premises. boTh The learned counsel argued ThaT The convicTion dnd senTence awarded by The learned Trial Judge was liable to be serassde and boTh me appellants deserved acquimi. LasTly, boTh The learned counsel conTended ThaT The appellanTs were youThful offenders and had already undergone imprisonmenT since 14—07-2001 i.e. for a period over 4 years d 9 monThs. Since The appellanTs were firsT offenders, Thei‘senTence awarded by The learned Trial Judge should be reduced To senTence already undergone by The appellanTs. 6. On The oTher hand, 5hri Ashish Shukla, learned GovT. AdvocaTe argued ThaT The TesTimony of The prosecuTrix being wholly unrebuTTed in cross examinaTion was worThy of credence and no corroboraTion was necessary for convicTing The appellanTs under SecTion-376(2)(6_) of IPC. So for as The appellanT Prakash is concerned, iT was argued ThaT The unrebuTTed TesTimony of The ‘ prosecuTrix revealed ThaT while boTh BunTi and Prakash came To The house of The prosecuTrix TogeTher, The appellanT Prakash sTood aT The door- while appellan‘r Bun‘ri commif‘red rape on The prosecu'rr-ix and af'rer commission of rape by Bun'l'i, the appeHan‘r Pmkash eniered infra 1Jne house, buf in +he meanwhile The prosecuh'ix escaped from The backdoor. Learned Govt Advoca‘re argued fha'f 'rhe wholly uhrebu‘Hed fesfimony of 1'he prosecufrix clearly shows fhaf 'rhe appellan'r Pmkash was olso ucfing in cancer? wi’rh +he appellan‘r Bunfi and iherefore convic’rion of The‘appelianfs under Section-376(2)(G) of IPC and The senTence awarded Thereunder are well founded. V? 7L Having considered rival submissions, I have perused The record of Sessions Case No.347/2001. IT is now weli seTTied by a £ caTena of decisions of The Apex CourT ThaT where The TesTimony of The prosecuTr-ix is reliable, worThy of credence and inspires confidence, no furTher corroboraTion is necessary and convicTion on The basis of The sole TesTimony of The prosecuTrix is permissible. True, ThaT Mangaldae PW—1, To whom The prosecuTrix is alleged To have informed The incidenT immediaTely afTer The occurrence, did noT supporT The prosecuTion sTory and MS. Chand, faTher a'l' The Church was also noT examined by The prosecuTion, buT The only quesTion which requires consideraTion in boTh appeals is wheTher The TesTimony of The prosecuTrix is reliable and worTh credence or noTi 8. The prosecuTrix, an old lady aged 60 years, has sTaTed in her TesTimony ThaT in The evening while she was all alone aT The house and cooking food, she heard knocks aT The door. On her asking, The person knocking aT’ The door said he was BunTi. She opened The door and found ThaT boTh The appellanTs BunTi and Prakash sTood aT The door. EunTi enTered The house while Prakash sTood aT The door. Thereafter, BunTi pushed her on The ground and ou‘l'mged her modesfy by Ieaving her saree and pe‘rficoa‘r. Bunfi was holding a knife in his hand. Af‘i'er commi‘H’ing rape on her, Bun‘ri wenf ou‘i'side. Thereafter, fhe appellan‘r Prakash enfered The house, but she managed To escape from The backdoor. 9. IT is True ThaT in paran‘i of her TesTimony, The prosecuTrix ‘sTaTed ThaT she wenT To The shop where her son was working and Took her To The Police STaTion for lodging The reporT, buT, she did noT specifically menTion ThaT on The same day’ immediaTely afTer The occurrence she,had gone To The shop where her son was working. The reporT Ex.P‘9 lodged by The prosecuTrix on «12-07-2001 aT 12.30 PM. was proved by Sub InspecTor 5.R.NeTam l PW-8 which fully oorroboraTes The aforesaid TesTimony of The prosecuTrix. No quesTion has been puT To The prosecuTrix in cross examinaTion To rebuT her TesTimony. NoT a single quesTion has been puT To rebuT The TesTimony of The prosecuTrix regarding commission of rape by The appellanT BunTi and The facT ThaT appellanT Prakash sTood aT The door while ThewappellanT BunTi commiTTed rape and afTer BunTi wenT ouTsidejldJp’pellanT Prakash came inside The house buT The prosecuTrix escaped from The backdoor. NoThing has been eliciTed in The cross examinaTion To show ThaT The prosecuTrix bears any grudge againsT The appellanTs or has any moTive To falsely implicaTe The appellanTs. In The cross examinaTion of Bhola Ram PW-6, Mangaldae PW-1 also noThing has emerged To show ThaT The prosecuTrix had any animosiTy//M wiTh The appellanTs. / 10; So far as The nrgumen'l's rela‘ring +0 delay in Iodging The F.I.R. is concerned, i’r is required 10 be smfed only To be rejecTed. FIR. was lodged on The very nexT day Le. 12-07-2001 QT 12.30 PM. In a TrudiTion bond conservaTive socieTy, iT cannoT be expecTed ThaT an old lady aged abouT 60 years who was ravished by n person of The age of her son would immediaTely rush To The Police STaTion To lodge F.Il.R. ofTer The occurrence. The‘feeling of shame and The fear of her presTige being lowered in The socieTy cannoT be losT sighT of. "e‘? 11.‘ I shall now consider The argumenT relaTing To parT played by appellamT Prakash. The ExplanaTion-1 To sub SecTion-Z of SecTion—376 of IPC clearly shows ThaT where a woman is raped by one or more in a group of persons acTing in furTherance of Their common inTenTion, each of The persons shall be deemed To have commiTTed gang rape wiThin The meaning of This sub-secTion. In case of Ashok Kumar Vs. STaTe of Haryana ciTed by The learned counsel for The appellanT Prakash, The Apex CourT held ThaT in order-fro convicT a person who had noT acTually raped The vicTim, for The offence under 5ecTion-376(2)(G) of IPC read wiTh explanaTion—1 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 The vicTim 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. The said 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 conduc‘t of offenders revealed during The course of action and if could arise and be formed suddenly, but fher-e musf be meefing of minds. 12. Applying fhe Touchstone laid down by The Apex CourT To The facTs of The presenT case, The TesTimony of The prosecuTrix clearly shows ThaT upon hearing The knocks aT The door when she opened The door of her house, she found ThaT appellanT Prakash and BunTi were sTdnding ouTside The door. She sTaTed ThaT appellanT BunTi firsT enTered The house while appellanT Prakash sTood aT The door. AfTer commission of cape by The appellanT BunTi, she sTaTed ThaT while Prakash was also ‘enTering The house, she escaped from The backdoor. This TesTimony is» compleTely unquesTioned in cross examinaTion and clearly goes To show ThaT appellanT Prakash was acTing in concerT wiTh The appellanT BunTi and if The prosecuTrix seeing him enTer The house had noT escaped from The backdoor, he Too would have commiTTed rape on The prosecuTrix. Thus, The wholly unrebuTTed TesTimony of The prosecuTrix clearly esTablishes ThaT The appellanT Prakash was acTing in concerT wiTh The appellanT BunTi and also inTended To commiT rape on The prosecuTrix afTer BunTi finished The sexual acT. In This View of The maTTer, The TesTimony of The prosecuTrix esTablishes beyond doubT The guilT of The appellanTs under 5ecTion-376(2)(G) of The IPC. 13. So far as The senTence awarded by The learned Trial Judge is concerned, in my considered opinion, The facT ThaT The rape was . commiTTed on an old lady aged 6O years, who was of The age of The moTher of The appellanTs, no leniency is required To be shown To The appellan‘rs wHh regard To The sen‘rence awarded by The learned Trial Judge. To show mercy in such a heinous crime would be a Truves'ly of jusTice. Plea of leniency is Thus wholly misplaced. f3. In The resulT, boTh The appeals Le. Criminal Appeal No.1222/2001 & Criminal Appeal No.1219/2001 being devoid of meriT are dismissed. Sdl- Dilip Raosaheb Deshmukihrwr/ Judge