,'*r"""'4! •t, •'sf'V.se'S. ''^x^ ',?-'":'!'!!'N'''":: •'^ '^^",/ is^ ^'v- HI6H COURT OF CHHATTIS6.4BH AT BILA.SPUft (SB: Hon'bteMr.T.P.SHARMA. JJ Crim'nal ApDeat No.836jBf 2Q05 Subhash Sweepar Vs. State of Chhattisgarh JUD6EMENT @ Post for 22/7/2009 Sd/- T.P. Sharma Judge APPELL.4NT (In Jail) HI6H COURT OF CHH.4ms©ARHAT BIL4SPUR Ci-iminal Aopeai No.536 of 2005 Subhash Sweepar S/o Sopal Swespar, aged 24 years, Occupation Labourer, R/o Indira Nagar, Bada Bazaar, Chirmiri, &istrict Koria (C.6.) RESPON-DENT Versus State of Chha+tisgarh' Through Po!ice Station Chirmiri, bistrict Koria (C.©.) (APPEAL UNDER SEC-TION 374 (2) OF THE CObE OF CRIMINAL PROCEbURE, 1973) (SBi Hon'ble Mr. T.p. Sharma. J.) Present: Mr.H.B.Agrcwal, Senior counsel with Mrs. Meera Jaiswal, counse! for -the ODDellcmt. Mr.Akhii Mishra, by.Sovt.Advocate for the State/respondent. JUD6MENT (beSivered on 22nd July, 2009) This oppea! is d'rected ngainst the judgment of convic+ion & order of sentence dnted 8.9.2004 passed by the Additiona! Sessions Judge, Manend''agrh, i" Sessions Trial No.330/2003 whereby the learned Additiona! 5essions Judge after holding the oppeflant gui't/ for the offence of rape cmd c'"iii"ntt! house tress pass for commissio" of the offence punishable with imprisonn'ent for life and c''in""a! intimidation convicted under Sections 4SO & 376 (2) (9) of the India" Penal Code and sentenced him to undergo rigorous imprison"ier!+ for 7 years a"d to poy a fine of Rs.1000/-, in default of poyment of fine to fur'ther undergo r'gorous impr'isonment for 5 "ior"ths ssnd ''igorous imprisonment for 10 years and to pay a fine of Rs.1000/-, i" default of poyment of fine to further* unc!erQO r'Qorous •?Tipr>sonnfislit fo*'* 5 ynonths. 2. I" ^ec'a! Sessions Case No.12/2006 lear'ned Spscial JudQe under .Atrocit^. !Cor>irt vide iudQment doted 20.3.2008 hcis conyicted other* two co-accused nan'ely Brajesh ©upta @ Suddu and Chota!u @ Agoinsai under Sections 376 (2) ^), 450 & 506 of the India" Pena! Code. 3. Judgn'ent of conyiction and order of sentenc®is challenged on the gr'o'jnd thnt without there being any clinch'ng and !eoal evidence against the present oppe!!cL"t, 1+>e court below has conyicted ond sentencad the flppellant as afor'en'entioned and thereby conin'littsd OL" iltegality. 4. Case of -rfie pr-osecutio", in brief. is "that the pro^cutrix Shcmti Bai was sleeping i" her house wi-tii her two .kids. At about 7-8 p.m. nfter' bo'ting the door, her* ">ece Pr'am'lG wos a,!so sieeD'na with her tnother i'r* thfii FOO!" Qdio'nins to 'HI€ room of the prosecutrix. On 25.6.2003 at about 11 p-r". co accused Suddu a"d , Chota!u came to the house of the Drosecutrix nnd knocked the door*. When the prosecutrix opened the door then they th''eatened her It'at they witl come after sowe+ims. She informed the incident to so" of kindlord who adv'sed her" to lodcB r'eport in the mor'ning then she went for sleep after ctosing the door. In the intervening "ight of 25/26.6.2003, oppetlant Sjbhash along with other co-_ occused namely, fiuddu and Chotn!u entered into •t+'e house of the prfssecittr'x after jumping the wall. They opened the door, at that time appetlant Subhosh wns arwed with oxe and o+her accused wer'e nr'med with stick. The orosecutt*>?' went i" o+her room ond closed the door fror" inside but 1+1^' kpocked the door r'egulu'ly and broken bulb. (Seeta who was also pr'esent in her house iostly opened the door". A-W- the •rii'*ee accused Dersons entered into the room of the Sr'osscutrix a"d coTtDfBlled to !!ve the roo'r1, then all th®accused co^nwitted rcse with the pr'osecutrix. After teaying premises by the accused persons, she lodged FT.R. at 4 p.m. "ide Ex.P/7. Spot map was prepared. Broken ptec« of gldss of bulb, holder', one condom containing sparm and other torn condom were r'ecovei'ed fr'oin +he spot. She was excmined by &r'.Lax"'i (PW-4) vids Ex-P/3 ond found that the prosecutrix is accustomed to intercour^. No externa! injury was found oyer the body of +he prosecutrix. Two slides of "agiriat smear were take" ond sealed. Her pet+icoat was atso exanrined vjde Ex.P/4-Fulpaint of cccused Subhash was recoyered vide ExP/1. One stick has been '•ecoyered fron> the accused vide Ex.P/2. One petticoat was recovered from the prosecutrix "ide Ex.P/5. Accused was examined by t)r. ft.R.Snjbhiye (PW-8) vide Ex.P/6 where he /•^^ /~B'w:,^ ^' z. __ found that +he accused vucs capcble for conimjtting intercourse. S'ides were se'zed yids Ex.P/9- 5- Aftei* recor'ding the s+a+eme"ts of the witnesses under Section 161 of "tfie Code of Cr'?wlin&! Procsdyrs, 1973 ond <xf'tert co!wn!€tion of inysst*QQ;tion, c^fy^ shset wos fH®d i" the ^'our*t of the Judicirtl MfltQistrate Firlst Clfiss, Maisndragnrh who in tur" con'mitted the case to the Cou''t of Ssssions Judge, .Ambikapur (Sur'guja) from where the Add'tiona! Sessions Judge. Manendragarh rsceiyed ths SQ!?'S o" treysfep for triQl 6. T" order' to pr'oye +he guilt of the appeliant/accused, 1+ie prosecution hos exat^ined ns rnQ?iv as 10 wit"€i5s'es.The Qccused his cilso takeEM 'H'1®desfenoe that the prosecutr'ix is in hcbit to impticnte the persons aid has implicated one 6u!!u for the co'nn'ission of offence of rupe who is stit! in custody with a yiew to extract the money. 7. I ha"e heard Mr'-H-B.Agrawal, Senio?' counse! "'i+h Mr's. Mssiw -Jaiswal, counset for -riie cppellant wd M''-A il Mishra, t>y.6oy+..4dvoca+e for the Sta+e/respo"dent flind perused the judgment impugned and record of •ttie Cour't be!ow. 8. Learned counsel oppearing for- the nppellcsnt vehen'en+ly argued that even Otccordino to CQ^C of Dr*osecutio" ^he Drosecutrtx ts of e<3rsv yirtue emd h^r* strtt^lTxftnt r*sy$rt!s 'ttlf3tt thrss <xccusBd D<Brsons ^i?n® !H h@r house- Tl^ffy hoye comm'tted intercourse. At the time of commission of such intercourse, she shifted her kids to onother room and ctso to Pr'ami!n nnd her mother. .At 4 p.m. she directed the accused persons to go then she went awey. It shows that this is a case of consent ond 'f accused h<is committed the offence, then it was wi+h the consent of the Drosecutr'x. Learned counsel fur+her ttraued that she was rcped by "rtiree persons for more tha" 3 ti'nss within a short spon time of 3 hours against her w'lll and consent but no externo! "'• internal injury was found over the body of the prosecutrix. Pramila and o+her persons were pre%nt in the same prem'ses but they haye not cried for help though according to case of Drosscytior* lust Qfter deooirture of the accused Deysons she hos lodoed the reDort at 4 o.m. at oolice stotion Chir'!T"ri which 's a distonce of 1 km. ff'ORi her house. The c"'cu'"sta"ces suff'ce the coise of the prosecution oi"d wash out the at!eontion made by "the Drosecutri.K. 9. On the o+her hond, judgmen.t irnpugned is supported on behalf of the respondent/State and argued that th's is a case of gtmg rape, but the prosecu+rix has "ot admi+ted relQting to the consent, therefor'e, only presumptio" as to absent of consent is aycitable under Section 114-A of the Eyidence Act that the D!''osecutfix has never" consented for' intercourse. The staten'ent of the prosecutrix is corroborated by prompt lodging F-I.R- o"d statement of Seeta (PW-5) who was present at the time of incident in the premises. Pr"mila (PW-6) is chitd witness who wcs also present at the time of incident- The prosecutrix is marr-ied lady, aged about 50 years, therefore, "o injury mas possible. According to al!egation nnd finding of the Additiona! Sessions -Judge. M.onendragarh, the accused has comrnitted cr'mina! house tress pass in order to commit the offence pun'shable with imprisonment for' !ife o-"d gang re^e nlong with other co-eiccused ond in fur'ther'ance of co'T'.mon intention of oth.er co-accused. 10. The pr'osecution has exon*i"ed as many as 10 witnesses in support of the support the case of the prosecution. The accused has taken specific defence that th.e prosecutrix is in habit of iwplicating falsety wi+h a yiew toe-'lf+('ac+ money from the persons. She iiriplicated one 6ul!u Udiya who is in custody a"d other pe'lson w*>" has acquitted of the charge of rape, but the pr'esent appel!<nit hss not adducsd any eyidence or he has not stated i" his eyidence recorded under Sactio" 313 of the Code that the present prosecutr-ix has demonded or tr'ed to extract the money from the accused on the date of con>mission of offence oc eve" during the pendency of the trkil or till decision of the case but burden is on the prosecutio" to proye the essentia! mgre/iients of the aforementio"ed offence beyond a!l shadow of doubt. 11. In or'd»r>to o^preciote ltle co?l+®ntlonof the pcirties, X hovs ex<1rmirl®€!ths eyidence adduced on behalf of the prosecutio". Other two co-acajsed were corivicted bv the &ecial Jud"a. Koi'ia. Prosecu+rix Shanti Bsi (PW-1) has deposed in her eyidence that on the date of commission of offence die was ar i? ;!i, ^ ^; s!esp!ng Qfter* closiri^ iii'e doo?*/ thc prssent appeilor't <snd other* co-accused <5uddu sr>d Chotalu after crossing the wa!! entered into her pr'emises. When she opened the door then they entered mto her room. Her relgtiyes Pr'amila and her mother' were also sleeping to adjoining room of the prosecutrix. Her kids were also sleeD'nQ- Firstly accused closed the door of the room of Prnmila a"d her irothe'' then occused Dersons felt down her and committed intercourse without hec wit! and consent. At the time. of commission of offence, co-occusBd Chotalu and ^jddu wer^ cipmec! w>th stick oyid oxs. At the t'me of o"erlitnl<1 the door accused persons +h''ectening h-er to open "the door o+herwise they w'!l broke the door" then urtder fsar she has ooened the door. At the tifre of coinmissio" of se-'<ua! wtercourss, occussd Dffrsons G'SO thr*e<iten'&d- At ciboyt 4 <s.m. she requestBd +ha accused persons to 30. She has also deposed that she was unde!' threat, therefore she request to go. After- laaying premises of the prosecutrix, she •"'"'edia+ely went to the po'ice stotion and lodged a r'eport. She vwis examined by See+a (PW-5) who was present at the time of incident in the house of the prosecutr-ix has deposed that accused persons came at 1 a.m. after crossing 'rtie boundar'y. They were armed with ws and basul" (c<"'penter' oxe). TT^ev went i.n othsr room. Under fear. the Qccussd oersons co?nwitted SCXUQ! intercour'se with the prosecutr'i?',. When she tried to •'estr'ain they haye threatened her. Pr'aniila (PW-6) has deposed thdt accused persons cawe to the house of Sheinti ^si vyhere ^ie wos c'lso D'r*6serit Ql^d then sh% h'dd®nin other room. Abdul Hafiz ff>W-2) has supported sei2u''e of condom. I" his cross-examiRc+ion she has deposed in detail relo+ing to condom and presenc«of sperm. The prosecutrix was examined br.Laxmi (P\4/-4) who hns deposed that the pr'osecu+rix wos aged obout 50 years and accustomed to intercour'se. No exte''na! injury was found in her pnya+e par't. 9ie has take" two slides of vaginal sme&f and also examined petticoat vide Exs.P/3 and P/4. t)r,R.ft.6ejbhiye (PW-8) hcs excm'ned the accused vide Ex.P/6 and wus found capabte for committ'ing inte''course. Prosecutrix Shont' Bai yw-1) hcs deposed in para-2 of her' eyidence that at about 4 p.m- she adv'sed the accused persons to go. 9ne ahs a!so adir'tted in oarf-S of her cross-examination that she has told to 1+is accused persons at 4 p.m. to 30. !2- Accor'ding to learned counse! for the oppellant these two pnr'ts reads as ur'.ds":- "?11-<T 3"d41 ^g^ 4.00 ^^ wt^ s't? 4'^ ^•^ q??T ft? 4.SO a?a lr^ f ^V WS3"' 'S^ '^•"d!^ +<iTR* ^ 'S? ^* sft l^ ^ 'g^ VK ^-It" "f?- v€'^ ft' '4^ ?'U vi. 4.00 ^ 3!!<M1J!"! ^ ^ST fe ^q cit'T 'q^ ;5Trat" which G"S suggestive of consent. According to defe.ncK when the accused per'sons cante the" the prosecutrix told to Pramita and her mother to 90 and sleep, but she hcs denied the sug^estio^ that whs*^ she SQW co-occused ChotQ'u the" she shiftsci her kids to another vQom but shs has adwtted 'Hiat Qfter* soinet*??'®both the kids werlt Ir* other roon' whece Seeta was present. Seeta (PW-5) has admitted i" her ey'dence ^>at her* rootTt ts <sd ioinin<3 to the roorri of the s!r*o5scutrix cytd Qdmitted of incident. Three accused persens can>e and wtien she opened the door, at thct tin'-e accused persons were broksn ar't'cles and threater'ed. She shouted for help but nobody ca??'® 'ttiouah othsr ser'sons Qre r'esidinQ ncQrby her* hou5%- Tl^e accused persons c'osed tiie roor" of these wttnssses f'r'orn th®outsid^ but ^!ft hcss SQ&n th@ inc'd^nt from the window situottsd b®t*ft®sritwo roows. ©6Strt (PW-6) child witness hos admitted that when 'ttie Qccused per'sons C<&?R€ ot night 'Hien she was hidden herself ?n other room. 13. Accor'din9 to cose of prosecution, 'tt*e prosecutrix wds resi^ing alor'g w>1+1 her two wnor kids Dr>iorl to ons inor'th of the incident. Her* sister cQm€ ond started r'esidino in other room adioinina to the room of the Brosecut'''x. These tvw witnesaes haye specifically s-tated that the accused along with two ocGused came to the house of the Drosecutrix and have coinmit+ed sexual intercourse with the prosecutrix. They were arn'ed though discrepancies re!Q:tlr(n to weo"on with 1tie accused wsrs hayinG in DQ'ra-2 rtnd 5 of 't4ie stestement of p'-osecutrix Shanti Bai that she has directed the accused persons to go at 4 a-m. She has expta'ned the circums+ances that she wus under fear thflit 'H^ey w>!! RiU her that 's why she hcfS requestsd ths accused persons to 30. 14. These two witnesses haye s+atsd thot the accused/cppellcnt along with two accused nersons came to the house of the prosecutrix aid ha"e co8?"n.itted sexua! intercour'se with the D('osecut'''x. Pnra 2 ond 5 of the evidence of pfosecutrix Shonti Bai reyeals that she hns directed the accused persons to go e/- ?<>. W£^:J 7 (^ .^'' at 4 p.m. but she has e^tained the circums+oi"c«s•thot she was uniter fear- -Hiat she u.'il! kil! "that is why she has requested the accused to go. 15. It is not disputed that -the accused were armed. Accordjng to the stotement of Shanti Bai (PW-l), three persons came at 1 p.m. in the night. They haye committed setua! intercourse with her a"d hnye left thehouseat4p.nl. ssnd Just aftsp leaving the pr'en'ises of the pro^cutrix she went to the po'ice station cmd lodged the F.I.R. vide Ex.P/7. If it wourd haye been the case of consent, then there was "o occosion to lodge the F.I.R. in'mediateiy that too at n'ght. Only two women and three k'ds were present in the house premises where offence took place and accused persons were at'med with stick and axe. In these circuinstances, actio" and al( resistOLnc« a"d any crying for help shows that the other persons residing in the house premises uiere helptess and under fear alt the accused persons haye coii"ni+ted sexua! intercourse with the prosecu+rix while she was helptess. She hos specifica'ly deposed that the accuaed hos comtnj+te^ se?<u<11! 'ntercourse with h®rlQ9a*"st hsr wi!! (vfa^'r) af+er* enter'ed irito +h& house and aftsr thr*e<xten*li9 her*. 16. After appreciating the evidence ayai!ab!e on record, ths Court below hss conyicted a"d sentenced the appetlant os cforementioned. Conyiction and sentence of the cppelScnt is based on legaland re'nble evidence. The Cou''+ ba'ow has rightly conyicted aid sentenced the appella"t. I do not findany scope for in+er'fecence. Takirig into consideration the gang rcye with the prosecutrix, no ihter'ference is warrojited. 17. Consequently, the cppea! has "o merit, same is liable to be dismissed and is accordingly dism'ssed. _——= T.P. Sharma Judge