Chattisgarh High Court
Ashwani Gond vs State Of Chhattisgarh on 28 January, 2022
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved for Judgment on : 21.12.2021
Judgment Delivered on : 28/01/2022
Criminal Appeal No. 306 of 2019
Arun Gond, S/o. Premlal Gond, aged about 24 years, R/o. Village-
Devkirari, Police Station- Bilha, District- Bilaspur, Chhattisgarh.
---- Appellant
Versus
State of Chhattisgarh, Through : The Station House Officer, Police
Station- Bilha, District- Bilaspur, Chhattisgarh.
---- Respondent
Criminal Appeal No. 706 of 2019
Ashwani Gond, S/o. Premlal Gond, aged about 25 years, R/o. Village-
Devkirari, Police Station- Belha, District- Bilaspur, Chhattisgarh.
---- Appellant
Versus
State of Chhattisgarh, Through Police Station- Bilha, District- Bilaspur,
Chhattisgarh.
---- Respondent
AND
Criminal Appeal No. 12 of 2020
Deepak Tiwari, S/o. Ramnarayan Tiwari, aged about 25 years, R/o.
Village- Devkirari, Police Station Bilha, District Bilaspur, Chhattisgarh.
---- Appellant
Versus
State of Chhattisgarh, Through : the Station House Officer, Police
Station- Bilha, District- Bilaspur, Chhattisgarh.
---- Respondent
-2-
For Appellant : Mr. Vijay Kumar Sahu, Advocate
(in Criminal Appeal No.306 of 2019)
For Appellant : Mr. Ankur Kashyap, Advocate
(in Criminal Appeal No.706 of 2019)
For Appellant : Mr. C.R. Sahu, Advocate
(in Criminal Appeal No.12 of 2020)
For Respondent/State : Mr. Rajendra Tripathi, Panel Lawyer.
D.B.:- Hon'ble Shri Justice Rajendra Chandra Singh Samant &
Hon'ble Shri Justice Arvind Singh Chandel
C A V Judgment
Per Rajendra Chandra Singh Samant, J.
1. All the three appeals are being heard and decided by this common
judgment as these appeals have arisen from common judgment of
conviction and order of sentence dated 22.01.2019, passed by the
Court of learned Special Judge (Protection of Children from Sexual
Offence Act, 2012) Bilaspur, District - Bilaspur (C.G.) in Special Criminal
Case No.451/2014, convicting the appellants (in Cr.A. No. 306 of 2019
and Cr.A. No.12 of 2020) under Sections Section 363, 392, 120-B and
376 (D) of the Indian Penal Code and Section 6 of Protection of
Children from Sexual Offences Act, 2012 and sentencing them to
undergo R.I. for 5 years with fine of Rs.500/-, R.I. for 5 years with fine
of Rs.500/-, R.I. for 5 years with fine of Rs.500/- and life imprisonment
with fine of Rs.500/-, respectively with default stipulations and in
(Cr.A. No. 706 of 2019), the appellant is convicted and sentenced under
Sections 376 (D) of the Indian Penal Code read with and Section 6/17
of Protection of Children from Sexual Offences Act,
2012, under Section 363, 392 and 120-B of the Indian Penal Code and
sentencing him to undergo life imprisonment with fine of Rs.500/-,
R.I. for 5 years with fine of Rs.500/-, R.I. for 5 years with fine of
Rs.500/- and R.I. for 5 years with fine of Rs.500/- respectively with
default stipulations.
2. According to the prosecution case, on 12.11.2014, the minor
prosecutrix, aged 12 years along with her sister, aged 4 years were on
their way to home at about 5 PM in the evening. The appellants
abducted the minor prosecutrix and her sister, took them to a lonely
place. It is alleged that all the appellants gang raped the minor
prosecutrix and during that incident, the locket worn by the minor
prosecutrix was also looted by the appellants. All the incident
occurred in unison as a result of a conspiracy. The minor prosecutrix
and the victim came back home on the morning of the next day and
informed about the incident to father Punit Ram Nishad (P.W.-1), who
gave written complaint (Ex.P-2) in the Police Station Bilha. Unumbered
FIR (Ex.P-1) was also lodged by Punit Ram Nishad (P.W.-1). The police
has investigated the case and the spot map was prepared at the
instance of the minor prosecutrix. The minor prosecutrix was
subjected to medical examination. One mobile belonging to the
appellant - Arun Gond was seized from the spot. On the basis of the
discovery statement given by the appellant - Arun Gond, the locket
was seized at his instance. Proof regarding date of birth of the
prosecutrix was collected. The minor prosecutrix was also examined
under Section 164 of Cr.P.C. by the Judicial Magistrate First Class. The
test identification parade of the appellants was conducted by the
Executive Magistrate. The statement of the prosecutrix and witnesses
were recorded under Section 161 of Cr.P.C. Vaginal slide of the minor
prosecutrix and the undergarments of the appellants were also seized,
which were sent for FSL examination. After completion of
investigation, charge-sheet was filed against the appellants.
3. The learned trial Court framed charges against the appellants Arun
Gond and Deepak Tiwari under Section 6 of POCSO Act, Sections 376
(D) in the alternative Section 376, 363, 392 and 120-B of I.P.C. and
against the appellant- Ashwini Gond under Section 376D of I.P.C. read
with Section 06/17 of POCSO Act, Sections 363, 392 and 120-B of I.P.C.
4. All the appellants denied the charges and pleaded not guilty. The
prosecution examined 23 witnesses. On completion of prosecution
evidence, the appellants/accused persons were examined under
Section 313 of I.P.C. in which they denied all the incriminating evidence
present against them and also their ignorance about the prosecution.
It was stated that all the appellants are innocent who have been
falsely implicated because of some previous enmity. No witness was
examined in defence. The learned trial Court after giving opportunity
of hearing to the prosecution and defence has passed impugned
judgment convicting and sentencing the appellants as mentioned
here-in-above.
5. Learned counsel for the appellants in all the cases submits that the
conviction of the appellants in all three cases is bad in law. The star
witnesses of this case is the victim (P.W.-3) and her sister (P.W.-4) are
not reliable witnesses and their statement does not inspire
confidence, therefore, the conviction against the appellants is without
any basis. Hence, all the appellants are entitled for acquittal. In the
alternative, it is argued that the incident in this case is dated
12.11.2014. The provisions for enhanced punishment under Section
376 D of I.P.C. for Gang Rape was amended in the year 2019. Whereas,
in the provision prior to this amendment, the minimum sentence to be
imposed for the gang rape was 10 years only. The learned trial Court
has sentenced the appellants on the higher side with life
imprisonment for the offences under Section 376 D of I.P.C. and
Section 6 of the POCSO Act, jointly. Under Section 06 of the POCSO
Act, there is provision for minimum sentence of 10 years, which may
extend to imprisonment for life. Taking into consideration, the age of
the appellants themselves and also that they are in jail since about 07
years, therefore, imposition of minimum sentence of 10 years would
be sufficient for the purpose of this case. The amendment of I.P.C. in
the year 2019 does not have any retrospective effect, hence, it is
submitted that in case this Court is not inclined to acquit the
appellants in their appeals, in that case, the sentence imposed upon
the appellants may be reduced and the appeals be allowed with
modification.
6. Learned State counsel opposes the submissions and submits that
minor victim (P.W.-3) in this case was age about 10 years on the date of
incident, she has clearly supported the case of prosecution by making
an unrebutted statement against the appellants and further, her
statement has been corroborated by another witness P.W.-3 i.e. sister
of the victim as well as Dr. Geeta Pradhan (P.W.-9), hence, there is no
case present for acquittal of the appellants from any of the charges.
Hence, all the appeals be dismissed.
7. Heard learned counsel for the parties and perused the documents
present on record.
8. Considered on the submissions. On perusing the evidence present in
the record of the trial Court, it is found that the prosecutrix (P.W-3)
was of age 12 years on the date she was examined, she clearly
identified the appellants in the Court and has stated about the
incident in which she herself and her sister (P.W.-4) were abducted and
taken to a mining area. Where the appellant- Deepak Tiwari raped her
and also looted her locket. She has further stated about involvement
of other appellants, who were present and had threatened the victim
to submit to their wishes. Her statement has remained unrebutted in
cross-examination.
9. Sister of the victim (P.W-4) has supported the statement of prosecutrix
(P.W.-3) on the point of abduction and she has also identified all the
appellants.
10. Punit Ram Nishad (P.W.-1) is the father of the minor prosecutrix
(P.W.-3) and another minor witness (P.W.-4), who has stated that his
daughters were missing, regarding which he had lodged an F.I.R. vide
Ex.P/1, he also filed a written complaint Ex.P/2 informing that his
daughters have come back and had informed, that his daughter i.e.
P.W.-3 was raped and her articles- one golden locket and one another
were looted. This witness has not made any statement in the Court
otherwise, the statement given by him has remained unrebutted in
cross-examination. Lodging of F.I.R. vide Ex.P-1 and the written
complaint given vide Ex.P/2 has been the ground for initiation of
investigation procedure.
11. The prosecutrix (P.W.-3) was medically examined by Dr. Geeta Pradhan
(P.W.-9). She has stated that the prosecutrix was aged about 10 years,
who had various injuries of abrasions over her body and she was
complaining of pain in her chest. On examining her private part, the
witness found that there was fresh tear present in the hymen, which
was bleeding. The victim felt pain in the finger test. The vaginal slabs
were prepared. Vide report Ex.P/18, this witness has opined that the
victim was forcibly raped within 24 hours. In cross-examination, her
statement has remained unrebutted. The adverse suggestion given
and answer of this witness does not lead to any conclusion that her
statement in examination-in-chief stands rebutted. The statement of
the victim P.W.-2 is fully corroborated by the Dr. Geeta Pradhan
(P.W.-9). There appears to be no dispute present that the age of the
victim had been about 10 years at the time of incident, hence, she was
of age below 12 years.
12. Baldeo Prasad Yadav (P.W.-12) in-charge head master has proved from
the school records that the date of birth of the minor victim was
03.05.2002. His statement has been remained unrebutted in cross-
examination.
13. The father of the victim (P.W.-1) has stated that the age of her victim
was 12 years, he has not stated anything about her date of birth.
Similarly, mother of the victim (P.W.-2) has made a statement of
approximate age of the prosecutrix being 10 to 11 years.
14. The prosecution is relying on the date of birth recorded in the school
records. According to this, date of birth of prosecutrix which is
03.05.2002 on the date of incident that is 12.11.2014, it would be seen
that the age of the prosecutrix was above 12 years, this fact needs
consideration.
15. There is a clear statement of prosecutrix (P.W.-3) that her locket was
looted by appellant- Deepak Tiwari. While the other two appellants
were present.
16. Inspector- Dilip Chandrakar (P.W.-13) has stated that appellant- Arun
Gond made statement of memorandum vide Ex.P/20 and from his
possession, the locket was seized vide Ex.P/22.
17. Suresh Nishad (P.W.-11) is a hostile witness, however, the statement of
Dilip Chandrakar (P.W.-13) has remained unrebutted in cross-
examination and no claim has been placed by the appellants on the
seized article, that is the gold locket. It is suggestive that the
possession of the locket with the appellant- Arun Gond was not valid in
any respect and this is an indirect corroboration to the statement of
prosecutrix (P.W.-3).
18. Yugal Kishore Urwasa (P.W.-19) is the Executive Magistrate, who has
conducted the test identification parade in which the prosecutrix
(P.W.-3) identified the appellants vide Annexure-P/9. He also
conducted the T.I.P. of the seized locket which was identified by Punit
Ram Nishad (P.W.-1) vide Annexure-P/51. In cross-examination, he has
denied the adverse suggestions. Therefore, his statement in
examination-in-chief has remained unrebutted.
19. The prosecutrix (P.W.-3) has stated in her examination-in-chief about
identifying the appellants vide Annexure-P/9, this statement has not
been challenged in cross-examination, therefore, the evidence
regarding the identification of the appellants by the prosecutrix
(P.W.-3) is fully established.
20. Punit Ram Nishad (P.W.-1) has not been questioned by the prosecution
regarding identification of the locket, however, the statement of the
I.O. Dilip Chandrakar (P.W.-13) is unrebutted on this point, which can be
believed.
21. There is evidence present to show that all the appellants were present
together when the minor prosecutrix (P.W.-3) and her sister (P.W.-4)
both were abducted and taken to a lonely place. All of them
accompanied during the time, when the minor prosecutrix (P.W.-3) was
raped by appellant- Deepak Tiwari and also the time when the locket
of the minor prosecutrix was looted by him. Later on, the same locket
has been found in possession of the appellant- Arun Gond. Hence, this
appears to be a case, in which all the appellants were in agreement
regarding the commission of the offences of rape and loot, which
completes the ingredients for the commission of offence of criminal
conspiracy and further the commission of offences by appellant
Deepak Tiwari was fully supported by the appellants- Arun Gond and
Ashwini Gond, which shows their act of furthering the common
intention. Therefore, We are of the view that the offence of rape of
minor victim has been committed by the appellant- Deepak Tiwari in
which the appellants- Ashwini Gond and Arun Gond both have acted in
furthering the common intention and also were in agreement in
commission of offences of rape and loot. Hence, conviction of the
appellants in the respective charges by the learned trial Court does
not suffer from any infirmity, which is liable to be confirmed and is
confirmed by this Court.
22. Considered on the alternative submissions of the learned counsel for
the appellants praying for reduction of sentence. The submissions that
the offence of gang rape under Section 376 D of I.P.C. is an
amendment of year 2019 by itself is not correct. This provision under
Section 376 D of I.P.C. has been amended and incorporated in the Code
by Criminal Law Amendment act, 2013 and which came into effect
from 03.02.2013, therefore, on the date of incident that is 12.11.2014,
the offence of gang rape that has taken place is covered under the
amended provision of Section 376 D of I.P.C. which also defines that
one or more persons constituting a group or acting in furtherance of
common intention, each of them shall be considered as having
committed the offence of gang rape and the minimum punishment
prescribed is 20 years, which may extend to life. Hence, there is no
legal ground present for reduction of sentence. Hence, after the
discussions made here-in-above and on the basis of the conclusions
drawn here-in-before, we do not find any substance in these appeals.
Therefore, all these Criminal Appeals are dismissed.
23. With these observations, all these Criminal Appeals stand disposed off.
Sd/- Sd/-
(R.C.S. Samant) (Arvind Singh Chandel)
Judge Judge
Monika
