Chattisgarh High Court
Naveen Kerketta vs State Of Chhattisgarh on 2 February, 2023
1
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 808 of 2013
1. Nand Kishore Tirkey, S/o. Devsai, Aged About 28 Years.
2. Shravan Kerketta, S/o. Santosh Kerketta, Aged About 22 Years.
3. Pradeep Lakra, S/o. Birbal Lakra, Aged About 18 Years.
4. Vijay Khakha, S/o. Dhansai Khakha, Aged About 22 Years.
5. Sunil Lakra, S/o. Maniram Lakra, Aged About 18 Years.
6. Jitendra Lakra, S/o. Jhangli Ram Lakra, Aged About 18 Years.
All Appellants are R/o. Village - Chidrapara, Police Station-
Dharamjaigarh, Civil & Revenue District : Raigarh, Chhattisgarh
---Appellants
Versus
State Of Chhattisgarh, Through The Station House Officer,
Police Station- Dharamjaigarh, Civil & Revenue District Raigarh,
Chhattisgarh
---Respondent
For Appellants : Mr. J.K. Saxena & Aman Kumar
Kesharwani, Advocates
State-Respondent : Mr. Sudeep Verma, Dy. Govt. Advocate &
Mr. Soumya Rai, Panel Lawyer
AND
CRA No. 780 of 2013
Naveen Kerketta, S/o. Late Sughan Ram, Aged About 22 Years,
R/o. Village Chidapara, Police Station & Tahsil Dharamjaigarh,
Civil & Revenue District Raigarh, Chhattisgarh
---- Petitioner
Versus
State Of Chhattisgarh, Through The Station House Officer,
Police Station- Dharamjaigarh, District Raigarh, Chhattisgarh.
---- Respondent
2
For Appellant : Mr. Awadh Tripathi, Advocate
For State-Respondent : Mr. Sudeep Verma, Dy. Govt.
Advocate
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Radhakishan Agrawal
Judgment On Board
(02.02.2023)
Sanjay K. Agrawal, J.
1. The appellants namely Nand Kishore Tirkey (A-1), Shravan
Kerketta (A-2), Pradeep Lakra (A-3), Vijay Khakha (A-4), Sunil
Lakra (A-5) and Jitendra Lakra (A-6) in Criminal Appeal No.808
of 2013 and appellant namely Naveen Kerketta (A-7) in Criminal
Appeal No.780 of 2013 have preferred these two appeals under
Section 374(2) of Cr.P.C. calling in question their conviction and
sentence awarded to them by impugned judgment of conviction
and order of sentence dated 11.06.2013 passed by the learned
Sessions Judge, Raigarh in Sessions Trial No.05/2013.
2. The appellants (A-1 to A-6) in Criminal Appeal No.808 of 2013
have been convicted and sentenced as under with a direction to
run all the sentences concurrently.
CONVICTION SENTENCE
U/s. 341 of I.P.C. : Rigorous imprisonment for 1 month with
fine of Rs.300/-, in default of payment of
fine, 7 days imprisonment (two times to
A-1 & A-2)
U/s. 342/34 of I.P.C. : Rigorous imprisonment for 6 months
with fine of Rs.500/-, in default of
payment of fine, 2 months additional
imprisonment.
U/s. 506-B of I.P.C. : Rigorous imprisonment for 2 years with
fine of Rs.1000/-, in default of payment
of fine, 6 months additional
imprisonment (to A-1 & A-2)
U/s. 365 read with Sec. : Rigorous imprisonment for 2 years with
34 of I.P.C.
fine of Rs.1000/-, in default of payment
of fine, 6 months additional
imprisonment.
U/s. 376(2)(g) of I.P.C : Life imprisonment with fine of
Rs.20,000/-, in default of payment of
fine, 2 years additional imprisonment
(out of life imprisonment sentence, 3
months rigorous imprisonment will be
separate detention as per section 73 &
74 of I.P.C.
3. The appellant (A-7) in Criminal Appeal No.780 of 2013 has been
convicted and sentenced as under with a direction to run all the
sentences concurrently.
CONVICTION SENTENCE
U/s. 506-B of I.P.C. : Rigorous imprisonment for 2 years with
fine of Rs.1000/-, in default of payment
of fine, 6 months additional
imprisonment.
U/s. 342/34 of I.P.C. : Rigorous imprisonment for 6 months
with fine of Rs.500/-, in default of
payment of fine, 2 months additional
imprisonment.
U/s. 365 read with Sec. : Rigorous imprisonment for 2 years with
34 of I.P.C.
fine of Rs.1000/-, in default of payment
of fine, 6 months additional
imprisonment.
U/s. 376(2)(g) of I.P.C : Life imprisonment with fine of
Rs.20,000/-, in default of payment of
fine, additional rigorous imprisonment
for 2 years. Out of life imprisonment
solitary confinement of 3 months under
Section 73 of I.P.C.
4. Case of the prosecution, in short, is that on 01.12.2012 in the
evening at 5:30 p.m. at Chowki Rairumakhurd, Police Station
Dharamjaigarh, District Raigarh, all seven appellants and two
juvenile accused committed gang rape with the minor victim
(PW-2) and also abducted her, wrongfully confined her and
threatened her and looted Rs.500/- and also looted the mobile
and purse of Rajesh @ Rambrij Paikara (PW-1) and thereby
committed the offence. On 01.12.2012 at around 7:20 p.m. FIR
was lodged by Rambrij Paikara (PW-1) against the unknown
person by telephonic call stating that near about Nandanjhariya
Nala, while they were coming from the side of Lailunga towards
Patthalgaon, two boys appeared and taken away a girl towards
forest and on such information, the police reached to the spot
and searched the girl into the forest proximate to Nandanjhariya
Nala, but she could not be traced. Again the search operation
was conducted, in which, in an abandoned house they noticed a
flame of fire and on suspicion, the police made search of that
abandoned house where four persons namely Nand Kishore
Tirkey (A-1), Shravan Kerketta (A-2) and Vijay Khakha (A-4)
were consuming liquor and the victim (PW-2) was also found
present in their company. Immediately, the police drawn
recovery panchnama vide Ex.P-11 and recorded the statement
of the girl / victim where she stated that she has been kidnapped
and gang-raped by 10 persons including present appellants.
The victim has categorically stated that she has been subjected
to gang-rape by all 10 accused persons. The police also
recovered empty liquor bottles, plastic disposal glasses vide
Ex.P-16 and at the instance of the victim (PW-2), the remaining
accused persons were apprehended from their houses and in
furtherance of investigation, the police sent the request letter for
MLC of the victim vide Ex.P-42. Dr. Uma Agrawal (PW-7)
examined the victim and submitted her MLC report vide Ex.P-32
stating that the victim is subjected to gang-rape. Thereafter, the
memorandum statement of Nand Kishore (A-1) was recorded
vide Ex.P-12 and as per the disclosure statement, seizure of
ladies purse belonging to victim was recovered and
undergarment of the accused (A-1) was also seized vide Ex.P-
13, which was sent for FSL. Thereafter, police has recorded the
memorandum statement of Shravan Kerketta (A-2) vide Ex.P-14
and seized the undergarment of A-2 vide Ex.P-15 and similarly
on the memorandum statement of Pradeep Lakra (A-3) his
undergarment was seized vide Ex.P-17, on the memorandum
statement of Sunil Lakra (A-5) his undergarment was seized
vide Ex.P-18, on the memorandum statement of Naveen
Kerketta (A-7) his undergarment was seized vide Ex.P-19, on
the memorandum statement of Vijay Khakha (A-4) his
undergarment was seized vide Ex.P-20, on the memorandum
statement of Jitendra Lakara (A-6) his undergarment was seized
vide Ex.P-21 and all were sent for FSL. The victim's vagina
slides were also sent for FSL vide Ex.P-46 and the FSL report is
Ex.P-49. As per the FSL report, on Articles A, B, D1, D2, E, F,
G, H & M, stains of semen were found; however, on the
undergarments of Sunil Lakra, Jitendra Lakra, Naveen Kerketta
no stains of semen and human sperm were found. The Test
Identification Parade was also conducted by the Executive
Magistrate-Nandkumar Khande (PW-15). Thereafter, after due
investigation, the appellants were charge-sheeted for the
aforesaid offences before the criminal court and ultimately it was
committed to the Court of Sessions for trial in accordance with
law, in which the appellants abjured their guilt and entered into
defence.
5. In order to bring home the offence, prosecution examined as
many as 15 witnesses and exhibited 49 documents; whereas
the defence has exhibited the documents Exs.D-1 & D-2C.
6. The trial Court, after appreciation of oral and documentary
evidence on record, convicted the appellants for the offence
under Sections 341, 342/34, 506-B, 363/34, 365/34, 376(2)(g) &
392/34 of I.P.C.; however they were acquitted of the offence
under Section 394/34 of I.P.C. and sentenced as mentioned in
the opening paragraph of this judgment, against which the
present appeals have been preferred.
7. Mr. J.K.Saxena & Aman Kumar Kesharwani, learned counsel
appearing on behalf of A-1 to A-6, would submit that there is no
legally admissible evidence led on behalf of the prosecution and
the appellants have been convicted on the basis of surmises
and conjectures and the finding recorded by the trial Court is
perverse on record and even otherwise the offences were not
found against them. Alternative submission of learned counsel is
that they are in jail for more than 10 years and minimum
sentence prescribed is 10 years for offence under Section
376(2)(g) of I.P.C. They relied on the decision passed by the
Superme Court in the matter of Thongam Tarun Singh v.
State of Manipur1 and submit that sentence be reduced for the
period of 10 years.
8. Mr. Awadh Tripathi, learned counsel appearing on behalf of
Naveen Kerketta (A-7) would submit that there is no evidence
against the appellant No.7 and he has been convicted only on
the basis of self-serving statement of the victim, as there is no
evidence on record to convict the appellant No.7 and further no
allegation of rape has been made against him. He submits that
by virtue of Explanation-I to Section 376(2)(g) of I.P.C., the
appellant No.7 has been convicted, but Explanation-I is not
attracted at all and therefore he deserves to be acquitted.
9. Mr. Sudeep Verma & Mr. Soumya Rai, learned State counsel
would submit that the trial Court has rightly convicted all the
1 (2019) 18 SCC 77
appellants for the aforesaid offences and therefore, the appeals
deserve to be dismissed.
10. We have heard learned counsel for the parties, considered their
rival submissions made herein-above and went through the
records with utmost circumspection.
11. Since one set of argument has been made on behalf of A-1 to A-
6 and separate submission has been made on behalf of A-7,
therefore, we will firstly consider the case of A-1 to A-6 and
thereafter consider the case of A-7.
12. In Criminal Appeal No.808 of 2013, the trial Court has convicted
A-1 to A-6 on the basis of statement of the victim, which was
supported by the statement of Dr. Uma Agrawal (PW-7) and
further FSL report Ex.P-19, in which the stain of semen and
human sperm was found on the undergarments of Nand Kishore
(A-1), Shravan Kerketta (A-2), Pradeep Lakra (A-3) and Vijay
Khakha (A-4). The victim has been examined as PW-2 before
the Court and in her statement before the Court, she has clearly
stated the names of A-1 to A-6 stating that first of all Nand
Kishore & Shravan came and pushed her and then the accused
Shravan Kerketta (A-2) caught hold of Rajesh @ Rambrij (PW-
1) and threatened him and stopped her to cry otherwise he will
kill her and thereafter A-1 & A-2 took her and Rajesh (PW-1) to
the forest and any how assaulted Rajesh and compelled him to
abscond from the spot and thereafter, Vijay Khakha (A-4) also
came on the spot then firstly Nand Kishore (A-1) committed
sexual intercourse and thereafter Shravan Kerketta (A-2) and
Vijay Khakha (A-4) and thereafter other three accused persons
also committed sexual intercourse with her. She has also
named juvenile Sawan, Juliyus & Manvel who have also
committed sexual intercourse with her but she has not named
specifically A-7 Naveen Kerketta in her statement before the
Court but in the Court statement, she has only stated that all the
accused persons committed sexual intercourse with her. The
victim was examined by Dr. Uma Agrawal (PW-7) and her report
is Ex.P-42, in which, she has opined that contusion marks
present on both left and right thigh and swelling about 4x5 cm
and found the hymen ruptured and she has sent two vaginal
swabs and one pubic hair slide for FSL examination and in FSL
report (Ex.P-49), on the vaginal slides D-1, D-2 and Article 'C'
and undergarments 'G', the stains of semen and human sperm
were found. As such, the finding recorded by the trial Court that
A-1 to A-6 have committed sexual intercourse with the
prosecutrix is a correct finding of fact based on evidence of the
statement of the victim (PW-2) and statement of Dr. Uma
Agrawal (PW-7) which has been further supported by FSL report
Ex.P-49. Therefore, we do not find any illegality in the said
finding recording by the learned trial Court for convicting the
appellants for the offences under Sections 341, 342/34, 506-B,
365/34 376(2)(g) of I.P.C.
13. Now it has been contended on behalf of the appellants that they
are in jail from 01.12.2012 and their conduct is very good in jail
and they have not committed jail offence and they have no
criminal antecedent, therefore, they be sentenced for the period
of 10 years already undergone. Learned counsel for the
appellants have relied upon the decision of the Supreme Court
on Thongam Tarun Singh (supra) to support their argument.
14. Admittedly, the date of offence is 01.12.2012 and the
amendment in Section 376 of I.P.C. came into effect on
03.02.2013. Prior to this amendment, Section 376(2)(g) provides
that whoever, commits gang rape, shall be punished with
rigorous imprisonment for a term which shall not be less than
ten years but which may be for life and shall also be liable to
fine. As such, the minimum punishment for the offence under
Section 376(2)(g) was 10 years, which may be for life and liable
to fine. In the instant case, the appellants have been awarded
punishment for life imprisonment.
15. The Supreme Court in the matter of Thongam Tarun Singh
(supra), which was also a case prior to amendment in Section
376(2)(g), considered the issue and reduced the sentence for
eight years considering that the conduct of the appellants in the
jail (post-conviction) was very good.
16. Learned State counsel has produced a report from the District
Jail, Raigarh, where the accused/appellants have been lodged
stating that the conduct of these appellants are normal, as such,
they have not been found in any commission of jail offence. It
was also brought on record that they have no criminal
antecedents.
17. Following the principles of law laid down by the Supreme Court
in Thongam Tarun Singh (supra) and considering that their
conduct is normal / average and they have no criminal
antecedents and they are in jail from 04.12.2012 for more than
10 years and 2 months; we are of the considered opinion that
the sentence of life imprisonment for the offence under Section
376(2)(g) is reduced to 10 years 2 months. However, as
directed by the trial Court, the sentences of other offences are to
be run concurrently. The appeal of A-1 to A-6 are partly allowed
by affirming the conviction for the offences, however, for offence
under Section 376(2)(g), they are sentenced to rigorous
imprisonment for 10 years and 2 months.
18. Now, in the appeal preferred by Naveen Kerketta (A-7), it is
submitted by the learned counsel for the appellant that in
Section 161 statement Ex.D-1, the victim did not name the
appellant herein (Naveen Kerketta) and there is no FSL report
available implicating the appellant as on the undergarment of
the appellant, no stain of semen and human sperm was found
and only on the basis of seizure memo Ex.P-11, the appellant
herein has been convicted, which has been countered by the
learned State counsel that the appellant/ accused (A-7) can be
convicted under Section 376(2)(g) of I.P.C. read-with
Explanation-I as stood prior to 03.02.2013 and therefore, even if
the appellant had not been named by victim, by virtue of Section
376(2)(g) read with Explanation- 1, he has rightly been
convicted for the offence under Section 376(2)(g) of I.P.C. In
order to appreciate the plea raised at the Bar, it would be
appropriate to notice Section 376(2)(g) of I.P.C. read with
Explanation-1.
"Explanation 1. 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."
19. In order to establish an offence under Section 376(2)(g) of I.P.C.
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 she 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.
20. The Supreme Court in the matter of Ashok Kumar v. State of
Haryana2 has held that Section 376(2)(g) read with Explanation-
1 embodies a principle of joint liability and the essence of that
liability is the existence of common intention presupposes prior
concert which may be determined from the conduct of offenders
2 (2003) 2 SCC 143
revealed during the course of action and held in paragraph 8 as
under :
"8. Charge against the appellant is under Section
376(2)(g) IPC. In order to establish an offence
under Section 376(2)(g) IPC, read with
Explanation I 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 she 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. In other words, this
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 conduct of offenders revealed
during the course of action and it could arise and
be formed suddenly; but, there must be meeting of
minds. It is not enough to have the same intention
independently of each of the offender. In such
cases, there must be criminal sharing marking out
a certain measure of jointness in the commission
of offence."
21. The principle of law laid down in Ashok Kumar (supra) has been
followed with approval in the matter of Rai Sandeep v. State
(NCT of Delhi)3 relying upon the decision of Krishan Kumar
Malik v. State of Haryana4 and held as under :
"32. In the decision reported as Krishan Kumar
Malik v. State of Haryana (supra) in respect of the
offence of gang rape under Section 376 (2) (g), IPC,
it has been held as under in paras 31 and 32:
3 (2012) 8 SCC 21
4 (2011) 7 SCC 130
"31. No doubt, it is true that to hold an accused
guilty for commission of an offence of rape, the
solitary evidence of the prosecutrix is sufficient
provided the same inspires confidence and
appears to be absolutely trustworthy, unblemished
and should be of sterling quality. But, in the case
in hand, the evidence of the prosecutrix, showing
several lacunae, which have already been
projected hereinabove, would go to show that her
evidence does not fall in that category and cannot
be relied upon to hold the appellant guilty of the
said offences.
32. Indeed there are several significant variations
in material facts in her Section 164 statement,
Section 161 statement (CrPC), FIR and deposition
in court. Thus, it was necessary to get her
evidence corroborated independently, which they
could have done either by examination of Ritu, her
sister or Bimla Devi, who were present in the
house at the time of her alleged abduction. The
record shows that Bimla Devi though cited as a
witness was not examined and later given up by
the public prosecutor on the ground that she has
been won over by the appellant."
(emphasis added)
22. Reverting to the facts of this case in light of the principles laid
down in Ashok Kumar (supra) and Rai Sandeep (supra), it is
quite vivid that in the instant case admittedly, in Section 161
statement of the victim Ex.D-1, the victim has named the
appellant only to be present at the time when police party
reached to the place of incident, but no overt act has been
alleged against the present appellant. Even in the statement
before the Court, he has not been specifically named by the
victim alleging any overt act. While confronting with the
statement Ex.D-1, she has simply stated that she cannot state
the reason why the name of all the accused persons has not
been stated in the statement under Section 161 Ex.D-1.
Furthermore, there is no corroborative piece of evidence against
the appellant, even in the FSL report, the report has been found
negative qua - appellant No.7. Furthermore, except that the
appellant No.7 was present in the spot when the police reached
and recovered the victim along with other co-accused persons, it
cannot be by that fact alone, the inference that the appellant
No.7 being in concert with the other six accused persons cannot
be established.
23. The Supreme Court in the matter of Ashok Kumar (supra) held
that mere presence of the accused in the house cannot be
termed that he was aware of the illicit affair going on between
and held as under :
"9..........Apart from the fact that he was present in
his house at about 3.30 p.m. in hot summer month
at the crucial time, nothing more is established. By
that factum alone, the inference that the appellant
being in concert with Anil Kumar cannot be
established. We cannot presume that by his mere
presence in his house, he was aware of the illicit
affair going on between Anil Kumar and the victim,
or that he was acting in concert with Anil Kumar."
24. There is no other incriminating piece of evidence against the
appellant No.7, as such, in absence of supportive evidence, the
appellant No.7 is entitled for the benefit of doubt and, as such,
the conviction and sentence of the appellant No.7 is set aside
and he is acquitted on the basis of benefit of doubt.
Consequently, the appeal of A-7 is allowed. His conviction and
sentence are set-aside.
25. Accordingly, the appeal of A-1 to A-6 are allowed in part. Their
conviction and sentence are hereby maintained for the offence
under Sections 341, 342/34, 506-B, 365/34 of I.P.C., but while
maintaining their conviction for offence under Section 376(2)(g)
of I.P.C., their sentence for the offence under Section 376(2)(g)
of I.PC. is reduced to 10 years & 2 months, which has already
been undergone by them, but the fine sentence imposed by the
learned trial Court shall remain intact.
26. Accordingly, all the appellants be released from jail forthwith, if
not required in any other case.
Sd/- Sd/-
(Sanjay K. Agrawal) (Radhakishan Agrawal)
Judge Judge
Ashok
