Sunil Gupta vs State Of Chhattisgarh
2022 Latest Caselaw 277 Chatt

    HIGH COURT OF CHHATTISGARH, BILASPUR
                  CRA No. 130 of 2020
   Sunil Gupta S/o Ramoram Gupta, Aged About 22 Years, Resident of
    Village Bastipara Rudukela, Police Station- Lailunga Taluka Lailunga
    District Raigarh Chhattisgarh, District : Raigarh, Chhattisgarh
                                                              ---- Appellant
                          Versus
 State Of Chhattisgarh Through Lailunga District Raigarh Chhattisgarh,
  District : Raigarh, Chhattisgarh
                                                           ---- Respondent

CRA No. 45 of 2021  Rajendra Kumar S/o Jaiprakash Nishad, Aged About 26 Years, Occupation Student, R/o Village Manjhapara, Rajapur, P.S. Lailunga, District Raigarh Chhattisgarh., District : Raigarh, Chhattisgarh

---- Appellant Versus  State Of Chhattisgarh, Through Station Incharge, Police Station Lailunga, District Raigarh Chhattisgarh., District : Raigarh, Chhattisgarh

---- Respondent CRA No. 194 of 2020  Kheer Mohan Painkra S/o Late Sukul Ram Painkra, Aged About 24 Years, R/o Village- Rudukela, Uparpara Police Station Lailunga, District- Raigarh Chhattisgarh Civil and Revenue District- Raigarh Chhattisgarh, District : Raigarh, Chhattisgarh

---- Appellant Versus  State Of Chhattisgarh Through Police Station- Lailunga, District- Lailunga Chhattisgarh, District : Raigarh, Chhattisgarh

---- Respondent CRA No. 275 of 2020  Lalit Sidar S/o Sukhan Sai Sidar, Aged About 24 Years, Occupation Agriculture, R/o Dorrobija, At Present R/o Patelpara, Lailunga, Police Station Lailunga, District Raigarh Chhattisgarh., District : Raigarh, Chhattisgarh

---- Appellant Versus  State Of Chhattisgarh Through Police Station Lailunga, District Raigarh Chhattisgarh., District : Raigarh, Chhattisgarh

---- Respondent CRA No. 405 of 2021  Girdhari Paikara S/o Sahdeo Paikara, Aged About 22 Years, Occupation Agriculturist, R/o. Village Salkhiya, Police Station Lailunga, District Raigarh Chhattisgarh, District : Raigarh, Chhattisgarh

---- Appellant Versus  State Of Chhattisgarh Through Police of Police Station Lailunga, District Raigarh Chhattisgarh, District : Raigarh, Chhattisgarh

---- Respondent

17/01/2022 Shri Amit Sharma, Advocate for appellant in CRA No.130 of 2020.

Shri Ashutosh Mishra, Advocate for appellant in CRA No.194 of 2020. Shri Sanjay Agrawal, Advocate for appellant in CRA No.275 of 2020. Shri Manoj Paranjpe and Shri Vivek Mishra, Advocates for appellant in CRA No.45 of 2021.

Shri P. Chetan Kumar, Advocate for appellant in CRA No.405 of 2021. Shri R.M. Solapurkar, Govt. Advocate for the State/respondent. All these appeals arise out of the common judgment of conviction and sentence, therefore, the applications for suspension of sentence and grant of bail filed in these appeals are being decided by this common order.

Heard on the applications for suspension of sentence and grant of bail to the appellants filed in these appeals.

The appellants have been convicted and sentenced by the judgment of conviction and order of sentence dated 31-12-2019, passed in Special Criminal Case under the Atrocities Act No.05/2019 by the Special Judge {under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act} Raigarh, District Raigarh, C.G. in the following manner with a direction to run all the jail sentences concurrently :-

              Sl.No. Conviction                       Sentence
              01.     U/s 363 of the IPC              R.I. for 7 years and fine amount of
                                      Rs.1,000/-, in default of payment of
                                     fine further R.I. for 6 months.
02.     U/s 366A of the IPC          R.I. for 7 years and fine amount of
                                     Rs.1,000/-, in default of payment of
                                     fine further R.I. for 6 months.
03.     U/s 376(D) of the IPC        Life imprisonment and fine of
                                     Rs.20,000/- in default of payment
                                     of fine further R.I. for 1 year
04      U/s 323/34 of the IPC        R.I. for 6 months and fine amount
        relating to prosecutrix      of Rs.1,000/-, in default of payment
                                     of fine further R.I. for 1 month
05      U/s 323/34 of the IPC        R.I. for 6 months and fine amount
        relating to victim           of Rs.1,000/-, in default of payment
                                     of fine further R.I. for 1 month
06      U/s 506-II of the IPC    R.I. for 2 years and fine amount of
                                 Rs.1,000/-, in default of payment of
                                 fine further R.I. for 1 month

Learned counsel for the appellants in all these appeals submit that conviction of the appellants is erroneous and without the basis of evidence of prosecution beyond reasonable doubt. The conviction is based only on the evidence of the prosecutrix (PW-1) and the eye-witness Minketan Rathiya (PW-

2) which are full of contradictions and omissions. The prosecutrix (PW-1) has contradicted in all her statement under Sections 161 and 164 of the Cr.P.C. and the Court statement. Hence, conviction against the appellants is not sustainable.

Learned counsel for appellant Sunil Gupta (appellant in CRA No.130 of 2020) submits that the prosecutrix (PW-1) and eye-witness Minketan Rathiya (PW-2) both are related to each other. They have made totally false statement against the appellants. The story of the prosecution that the minor prosecutrix was gang raped by the appellants is highly improbable. Dr. Sushama Ekka (PW-9) who has examined the prosecutrix has very clearly opined in her report (Ex.-P/12) that no opinion can be given regarding commission of recent intercourse with the prosecutrix and further, she has reported that the hymen of the prosecutrix was intact, therefore, no case is made out against appellant Sunil Gupta. Hence, it is prayed that appellant Sunil Gupta may be granted bail during pendency of the appeal filed by him.

Learned counsel for appellant Kheer Mohan Painkra (appellant in CRA No. 194 of 2020) submits that this appellant was not involved in the alleged commission of offences. The prosecutrix (PW-1) has made admission in her cross-examination that this appellant was not the person who had raped her. Relying on the judgment of Hon'ble the Supreme Court in the case of Pardeep Kumar Vs. Union Administration, Chandigarh, (2006) 10 SCC 608 it is submitted that the statement of the prosecutrix does not inspire confidence so that her statement can be based for convicting the appellant. Therefore, it is prayed that this appellant may be enlarged on bail during pendency of the appeal filed by him.

Learned counsel for appellant Lalit Sidar (appellant in CRA No. 275 of 2020) submits that the prosecutrix (PW-1) had not identified any of the persons at the time of the incident and the FIR (Ex.-P/1) was lodged against the unknown persons. The prosecutrix (PW-1) has made admissions in her cross- examination that there was presence of police at the time of the test identification parade, therefore, evidence of the test identification parade is full of doubt. Hence, the conviction of the appellant and others is bad in law. Therefore, it is prayed that this appellant may be granted bail during pendency of the appeal filed by him.

Learned counsel for appellant Rajendra Kumar (appellant in CRA No. 45 of 2021) submits that the case is based on the evidence of the prosecutrix (PW-

1). Her statement in the Court does not inspire confidence at all. Her statement in the Court is full of material contradictions and omissions and the FIR was lodged against the unknown persons and the admission of the prosecutrix (PW-1) regarding presence of police at the time of the test identification parade makes the identification procedure procedure doubtful. The statement of the prosecutrix is contradictory to her previous statement given under Sections 161 and 164 of the Cr.P.C. The medical examination of the prosecutrix also suggest that the incident of rape has not taken place. Hence, the prosecutrix (PW-1) cannot be believed. Reliance has been placed on the judgment of Hon'ble the Supreme Court in the case of Santosh Prasad alias Santosh Kumar Vs. State of Bihar, (2020) 3 SCC 443. It is also submitted that the prosecution has not proved the minority of the prosecutrix. Her date of birth in the school register is recorded as 24-10-2002, regarding which the In-charge Head Master Yugendra Kumar Choudhari (PW-4) has admitted in cross-examination that he was not the author of the entry made and further, the entry was not certified and there was no seal of the school present. Relying on the judgment of Hon'ble the Supreme Court in the case of Satpal Singh Vs. State of Haryana, (2010) 8 SCC 714 it is submitted that although the entry in official record has evidentiary value, but the same is rebuttable and that has been rebutted successfully. Hence, the appellant in this appeal may be granted bail.

Learned counsel for appellant Girdhari Paikara (appellant in CRA No.405 of 2021) adopts the arguments advanced by the counsel for the appellants in other appeals and prays for suspension of sentence and grant of bail to appellant Girdhari Paikara.

Per contra, learned counsel for the State opposes the applications for suspension of sentence and grant of bail in all the appeals and submits that there is clear very clear and categorical statement of the prosecutrix (PW-1) against all the appellants, which has remained unrebutted in cross-examination. Her statement is further corroborated and supported by the eye-witness Minketan Rathiya (PW-2). The presence of injuries on the body of Minketan Rathiya (PW-2) also corroborates his statement. It is further submitted that there were 7 accused persons who had gang raped the prosecutrix (PW-1), out of which only 5 persons have been tried and convicted. Therefore, there is no case present for grant of bail to any of the appellants.

Heard learned counsel for the parties and perused the record of the trial Court.

Considered on the submissions. Perused the evidence present in the record of the trial Court. The definition of offence of rape subsequent to the Amendment of 2013 has gone for a drastic change and penetration and insertion into the private part of the victim to any extent is now a punishable offence. Further, the definition of gang rape is also wide scope. Looking to the statement given by the prosecutrix which has been supported by the eye-

witness Minketan Rathiya (PW-2), we are of the considered view that none of the appellants are entitled for suspension of sentence and grant of bail.

Accordingly, the applications filed by the appellants in these appeals for suspension of sentence and grant of bail are rejected.

                     Sd/-                                        Sd/-
              (R.C.S. Samant)                         (Arvind Singh Chandel)
                  Judge                                        Judge




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