Rohit Sahu vs State Of Chhattisgarh
2023 Latest Caselaw 710 Chatt

                                                          CRA-70-2014 & CRA-109-2014
                                        Page 1 of 10


                                                                                       NAFR
              HIGH COURT OF CHHATTISGARH, BILASPUR
                         Criminal Appeal No. 70 of 2014
Rohit Sahu, Son of Baldau Sahu, aged about 25 years, Resident of
Village Nagjhar, Police Station & Post Office- Rajim, District Gariyaband
(Chhattisgarh)
                                                                             ---- Appellant
                                          Versus
State of Chhattisgarh, through the District Magistrate Gariyaband,
District Gariyaband (Chhattisgarh)
                                                                         ---- Respondent
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For Appellant                          :      Mr. Roop Ram Naik, Advocate
For Respondent-State                   :      Mr. Afroz Khan, Panel Lawyer

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WITH

Criminal Appeal No. 109 of 2014 Birbal, Son of Aanand Ram Netam, aged about 28 years, Resident of Nagjhar, Police Station Rajim, District Gariyaband, Civil District Raipur, Revenue District Gariyaband (Chhattisgarh)

---- Appellant Versus State of Chhattisgarh, through the Station House Officer, Police Station Gariyaband, District Gariyaband, Civil District Raipur, Revenue District Gariyaband (Chhattisgarh)

---- Respondent

-----------------------------------------------------------------------------------------------

For Appellant                          :      Mr. Rishi Rahul Soni, Advocate
For Respondent-State                   :      Mr. Afroz Khan, Panel Lawyer

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Division Bench CRA-70-2014 & CRA-109-2014

Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Radhakishan Agrawal, JJ Judgment on Board (03.02.2023) Sanjay K. Agrawal, J

(1) These criminal appeals filed by accused-appellants herein,

namely, Birbal (A-1) and Rohit Sahu (A-2) under Section 374(2) of

Cr.P.C. are directed against the impugned judgment of conviction and

order of sentence dated 07.10.2013, passed by the Court of learned

Special Judge, constituted under the provisions of Scheduled Castes

and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short the

"Act of 1989"), District Raipur (Chhattisgarh) in Special Sessions Trial

Case No.30/2013 (State of Chhattisgarh vs. Birbal and another),

whereby they have been convicted for offences: under Section 376(2)

(g) of IPC and sentenced to undergo rigorous imprisonment for 20

years with fine of Rs.100/- each, and in default of payment of fine,

additional rigorous imprisonment for 03 months each; under Section

341 of IPC and sentenced to undergo simple imprisonment for 01

month and also under Section 506-B of IPC and sentenced to undergo

rigorous imprisonment for 03 years and all the substantive sentences

are directed to run concurrently.

(2) The case of the prosecution, in short, is that on 11.01.2013, at

about 12:00 noon at Village Barethiya Kona, ahead of Baruka, near

Dongri within the ambit of Police Station Gariyaband, the accused-

CRA-70-2014 & CRA-109-2014

appellants herein illegally obstructed the prosecutrix (PW-01), who

belongs to Scheduled Tribe community, while she was going towards

Village Pore to purchase grocery items and, thereafter, forcibly taken

her in forest area and committed sexual intercourse with her without her

will and consent one by one and, thereby, committed gang rape and

further the accused-appellants threatened her to kill and, as such, the

accused-appellants committed offences under Sections 341, 376(2)(g),

506-B of IPC and offences under Sections 3(2)(v) and 3(1)(12) of the

Act of 1989 have also been added against the appellant- Rohit Sahu

(A-2).

(3) The further case of the prosecution is that after the incident, on

11.01.2013 itself, at about 18:30 hours, the prosecutrix (PW-01) lodged

report at Police Station Gariyaband, pursuant to which, FIR (Ex.P/01)

was registered against the appellants. 'Nazari Naksha' was prepared

vide Ex.P/05. Consent was taken from the prosecutrix for her medical

test and permission with regard to same was also taken from the Sub-

Divisional Officer vide Ex.P/02. The prosecutrix was referred to District

Hospital for her medical examination, which was conducted by Dr. Smt.

B. Bara (PW-06), who gave MLC report (Ex.P/16), wherein it has been

opined that no sign and symptoms are available and no definite opinion

can be given about mentioned event and further external injuries are

also not found. The accused-appellants were also subjected to medical

examination vide MLC reports (Ex.P/19 & P/21 respectively). Further,

vaginal slides of the prosecutrix were seized vide Ex.P/18 and CRA-70-2014 & CRA-109-2014

undergarments and sari of the prosecutrix were also seized vide Ex.P/7

& P/8. But, neither any evidence/document available on record that the

aforesaid seized articles were sent to FSL examination, nor any FSL

report/Query report has been brought on record for the reasons best

known to the prosecution. The accused-appellants were arrested vide

Ex.P/13 & P/14 respectively and their statements under Section 313 of

CrPC were recorded, but no question pertaining to any incriminating

circumstance has been putforth before them. Thereafter, statements of

witnesses were recorded and, after due investigation, the police filed

charge-sheet in the Court of Chief Judicial Magistrate, Gariyaband and,

thereafter, the case was committed to the Court of Sessions. The

accused-appellants abjured their guilt and entered into defence by

submitting that they are innocent and have been falsely implicated.

(4) The prosecution in order to prove its case examined as many as

09 witnesses and exhibited 24 documents, whereas the appellants-

accused in support of their defence have not examined any witness, but

exhibited 02 documents.

(5) The learned trial Court after appreciating the oral and

documentary evidence available on record though acquitted appellant-

Rohit Sahu (A-2) for offences under Sections 3(2)(v) and 3(1)(12) of the

Act of 1989, but proceeded to convict both the appellants for offences

under Sections 341, 376(2)(g) & 506-B of IPC and sentenced them as

mentioned herein-above, against which these appeals have been CRA-70-2014 & CRA-109-2014

preferred by the appellants-accused questioning the impugned

judgment of conviction and order of sentence.

(6) Mr. R.R. Naik and Mr. R.R. Soni, learned counsel appearing for

the appellants submit that except the self serving statement/testimony

of the prosecutrix (PW-01) there is no legally admissible evidence

available on record against the appellants to connect them with the

offences in question. In fact, in the medical evidence (i.e. MLC reports),

which is duly supported by the statement of the doctor, nothing

incriminating has been found against the appellants. Though slides,

undergarments and sari of the prosecutrix have been seized, but were

not sent for FSL examination. Thus, the case of the prosecution is full of

doubt and, therefore, the evidence available on record specially the

medical evidence and recovery of slides, undergarments and sari of the

prosecutrix cannot be relied upon to convict the appellants for the

offences in question. In alternative, it is submitted that the appellants

are in jail since 12.01.2013, i.e. more than 10 years and, in view of

decision rendered by the Supreme Court in the matter of Thongam

Tarun Singh v. State of Manipur 1, considering that there is no other

criminal antecedents reported against the appellants herein and they

have not committed any jail offence, their sentence be reduced to the

period already undergone by them and they be released from jail

forthwith. Hence, the present appeal deserves to be allowed in full or in

part.

1 (2019) 18 SCC 77 CRA-70-2014 & CRA-109-2014

(7) Per-contra, Mr. Afroz Khan, learned State counsel supported the

impugned judgment of conviction and order of sentence and submits

that the prosecution has proved the offence beyond reasonable doubt

by leading evidence of clinching nature. The learned trial Court has

rightly convicted the appellants for the aforesaid offences. He further

submits that it is not a case where sentence of the appellants can be

reduced from 20 years' rigorous imprisonment to the period already

undergone by them. In view of statement of the prosecutrix (PW-01)

coupled with the provision contained in Section 376(2)(g) of IPC, as it

stood prior to the amendment w.e.f. 03.02.2013, the present appeals

deserve to be dismissed.

(8) We have heard learned counsel for the parties, considered their

rival submissions made herein-above and went through the records

with utmost circumspection.

(9) Admittedly, the prosecutrix (PW-01), who belongs to Scheduled

Tribe community, at the relevant point of time, was a deserted woman

and was living separately. In her statement before the Court, she has

clearly stated that on the date of offence while she was going to

purchase grocery items for her shop, the two accused-appellants

stopped/approached her and rudely asked her that they want to do

'galat kaam' (sexual intercourse) with her, upon which she strongly

denied, but still the accused-appellants threatened her, taken her into

the forest, tightened her mouth by means of cloth and firstly appellant-

CRA-70-2014 & CRA-109-2014

Birbal (A-1) committed sexual intercourse with her and thereafter

appellant-Rohit (A-2) committed sexual intercourse with her. Thereafter,

she went to her house. There was nobody in her house and she was

crying. When Sahdev Nishad (PW-02) came to her house, saw her

crying, she informed the aforesaid incident to him, who in turn, informed

the incident to the brother of the prosecutrix, namely, Kamta (not

examined) and, thereafter, she alongwith his brother- Kamta went to

police station for lodging report. Prosecutrix (PW-01) was subjected to

brief cross-examination, but nothing has been extracted from her to say

that she has falsely implicated the accused-appellants herein in the

instant crime. Indeed, in Paras- 10 & 24 of her statement, she has

clearly stated that the two appellants herein committed sexual

intercourse with her. Though, in the MLC report (Ex.P/16), Dr. Smt. B.

Bara (PW-06) has opined that no sign and symptoms are available and

no definite opinion can be given about the mentioned event and further

external injuries are also not found on the body of the deceased. As

such, considering the statement of the vicitm, we are of the considered

opinion that the appellants have committed sexual intercourse with the

prosecutrix and, therefore, the learned trial Court has rightly convicted

them for offence under Section 376(2)(g) of IPC.

(10) Now, the next question for consideration would be whether the

sentence of 20 years' rigorous imprisonment awarded by the learned

trial Court to the appellants for having committed offence under Section

376(2)(g) of IPC can be reduced to the period they have already CRA-70-2014 & CRA-109-2014

undergone in light of the decision rendered by the Supreme Court in

Thongam Tarun Singh (supra), as contended by learned counsel for

the appellants.

(11) At this stage, it would be profitable to notice here Section 376(2)

(g) of IPC, prior to its amendment w.e.f. 03.02.2013 and same reads as

under :

"376. Punishment of rape.-

(1) xxx (2) Whoever-

(g) 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."

(12) The Supreme Court in the matter of Thongam Tarun Singh

(supra) while considering the fact that the accused-appellant therein

had no criminal antecedents and his conduct in jail (post-conviction),

has reduced the sentence of 15 years for having committed offence

under Section 376(2)(g) of IPC to 08 years and held in Para-13 as

under:

"13. It is stated that at the time of occurrence, appellant no. 1 was working as a police driver and appellant no. 2 was a singer having good reputation, performing as a singer on the stage and both the appellants were aged about 24-25 years, at the time of the occurrence. It is also stated that both the appellants have no criminal antecedents and they hail from backward area. Learned counsel for the appellants have also produced certificate issued from the Jail Authorities to show that the conduct of the appellants CRA-70-2014 & CRA-109-2014

(post conviction) are very good and satisfactory and they have been participating in the sports/garden activities and other programmes of the Jail. Considering the facts and circumstances of the case and that the appellants have no criminal antecedents and also the conduct of the appellants in the Jail (post conviction), the sentence of imprisonment of fifteen years (for the conviction under Section 376(2)."

As such, the argument raised by learned counsel for the

appellants that since the appellants are in jail for more than 10 years

and no other criminal antecedents have been reported against them

and they have not committed any jail offence, therefore, their period of

sentence, awarded by the learned trial Court, be reduced finds support

and favour. Accordingly, considering that there is no material brought on

record to hold that the appellants herein had any other criminal

antecedents and they have been involved in commission of jail offence

post conviction, following the principle of law laid down by their

Lordships of the Supreme Court in the matter of Thongam Tarun

Singh (supra), it would be expedient to reduce the sentence of 20

years' rigorous imprisonment awarded to the appellants by the learned

trial Court for committing offence under Sections 376(2)(g) of IPC to the

period already undergone by them, as they are in jail since 12.01.2013,

i.e. more than 10 years.

(13) In that view of the matter, while affirming the conviction of the CRA-70-2014 & CRA-109-2014

appellants herein for offence punishable under Section 376(2)(g) of

IPC, we award them sentence to the period already undergone by

them, as they are in jail since 12.01.2013, i.e. more than 10 years, by

reducing it from 20 years' rigorous imprisonment, but the fine amount

imposed by the learned trial Court shall remain intact. Rest of the

conviction under Sections 341 & 506-B of IPC and their respective

sentences awarded by the learned trial Court to the appellants are also

hereby affirmed. Consequently, as the appellants are in jail since

12.01.2013, i.e. more than 10 years, they be released from jail

forthwith, if not required in any other matter.

(15) These criminal appeals are party allowed to the extent indicated

herein-above.

                  Sd/-                                           Sd/-
           (Sanjay K. Agrawal)                         (Radhakishan Agrawal)
                 Judge                                          Judge
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