Nagesh @ Gondu vs State Of Chhattisgarh
2023 Latest Caselaw 222 Chatt

                                                          Page 1


                                                          NAFR

      HIGH COURT OF CHHATTISGARH, BILASPUR
                     CRA No. 703 of 2013

    Nagesh @ Gondu, S/o Naval Kishore Nirmalkar, Aged
     About 27 Years, R/o Pandri Tarai, Near Mahamaya Talab,
     Thana - Pandri, Raipur Civil and Rev. District - Raipur,
     Chhattisgarh.                           ---- Appellant

                             Versus

    State of Chhattisgarh, Through : Police Station - Pandri,
     Raipur, Chhattisgarh.                     ---- Respondent


For Appellant           : Mr. Shyam Sundar Lal Tekchandani,
                          Advocate

For Respondent/State : Mr. Sudeep Verma, Deputy Government
                       Advcocate


          Hon'ble Shri Justice Sanjay K. Agrawal
        Hon'ble Shri Justice Rakesh Mohan Pandey
                    Judgment on Board
                         12/01/2023

Sanjay K. Agrawal, J.

1) This criminal appeal under Section 374(2) of the CrPC is

directed against the impugned judgment of conviction

recorded and sentence awarded by the learned Sessions

Judge by which the appellant has been convicted for

offence under Section 376 (2)(f) of Indian Penal Code (for

short "IPC") and sentenced to undergo imprisonment for life

and pay fine of ₹ 1,000/-, in default, to further undergo

additional rigorous imprisonment for one month.

2) Case of the prosecution in short is that the father of the Page 2

victim lodged a report vide Ex.P/1 to the effect that his

daughter/victim was watching television in the house of

Chintabai (PW/10) in the neighboring and came back

crying, then he noticed blood stains on the salwar of her

daughter and blood was oozing on her private parts, then on

being asked, she informed that it is the appellant who had

taken her and committed sexual intercourse with her

pursuant to which offence was registered and the victim was

medically examined vide Ex.P/5 by Dr. Padmini Singh (PW/

4) on which signs of struggle was found all over the body of

the victim and slide was prepared and sent for FSL, but FSL

report has not been brought on record.

3) After due investigation, the accused / appellant was charge-

sheeted for offence under Section 376 (2)(f) IPC and

charge-sheet was filed before the jurisdictional criminal

court and the case was committed to the Court of Sessions

for conducting the trial, and for hearing and disposal in

accordance with law.

4) The accused / appellant abjured the guilt and entered into

defence. In order to bring home the offence, the

prosecution examined as many as ten witnesses and

exhibited 19 documents. The defence has examined two

defence witnesses and exhibited three documents.

5) The trial Court after appreciating oral and documentary

evidence available on record, convicted and sentenced the

appellant under Section 376 (2)(f) IPC in the manner Page 3

mentioned in the opening paragraph of this judgment

against which the instant appeal under Section 374(2) of the

CrPC has been preferred.

6) Mr. Shyam Sunder Lal Tekchandani, learned counsel for

appellant, would submit that the trial Court is absolutely

unjustified in convicting the appellant for the aforesaid

offence as it has not been proved beyond reasonable doubt.

He would further submit that if the offence has been found

proved by this Court, the appellant be sentenced to the

period already undergone by him.

7) Mr. Sudeep Verma, learned State counsel would submit that

the prosecution has been able to bring home the offence

and has proved the offence beyond reasonable doubt and

learned trial Court has rightly convicted the appellant for

offence punishable under Section 376 (2)(f) IPC, therefore,

the appeal deserves to be dismissed.

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

their rival submissions and went through the records with

utmost circumspection.

9) The victim (PW/1) has supported the case of the

prosecution and has clearly stated that the appellant has

taken her to his house and inserted his private part on her

private part and thereby he committed sexual intercourse

with her. Similarly, elder sister of the victim (PW/2), has

also supported the case of the prosecution. Not only these Page 4

two, father of the victim (PW/3), has also stated that on

being asked to his daughter/ the victim (PW/1) she stated

that the appellant has committed sexual intercourse with

her. Dr. Padmini Singh (PW/4) has examined the victim and

has proved the medical report (Ex.P/5), in her medical

examination she found injuries on the private parts of the

victim and slides have been prepared, which were sent for

FSL, however, the FSL report has not been brought on

record.

10) Considering the statement of the victim (PW/1), elder sister

of the victim (PW/2) and father of the victim (PW/3), we are of

the considered opinion that it is the appellant who has

committed sexual intercourse with the victim, further the

statement of the father of the victim (PW/3) is corroborated by

the testimony of Dr. Padmini Singh (PW/4), who has

medically examined the victim (PW/1) on 12.08.2012, as

such, the prosecution has been able to bring home the

offence beyond reasonable doubt and learned trial court has

rightly convicted the appellant for the aforesaid offence. On

the date of offence i.e. 12.08.2012, the unamended provision

of Section 376 (2) (f) IPC was in force.

11) Prior to amendment of the provision of Section 376 IPC, it

reads as under:

"376. Punishment for rape.-- (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be Page 5

less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

(2) Whoever,--

(a) being a police officer commits rape--

(i) within the limits of the police station to which he is appointed; or

(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or

(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or

(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or

(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or

(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or

(e) commits rape on a woman knowing her to e pregnant; or

(f) commits rape on a woman when she is under twelve years of age; or

(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:"

Page 6

12) Reverting to the facts of the case, the victim was six

years old on the date of offence, and it is the statement at

the Bar that the appellant has no criminal antecedents, it is

the first offence and he is in jail since 13.08.2012. On the

date of offence he was 27 years old, though the minimum

punishment prescribed for the offence under Section 376 (2)

(f) IPC is 10 years which may extend to life and shall also be

liable to fine but learned trial Court has not recorded specific

finding for awarding life sentence.

13) In that view of the matter, in our considered opinion, ends of

justice would be served if the appellant is sentenced to the

period already undergone by him. The appellant is in jail

since 13.08.2012, more than ten years, taking into

consideration the period he has already undergone, we

award the sentence for the period already undergone by him

and it is directed that the appellant be released forthwith, if

not required in any other offence.

14) Accordingly, this criminal appeal is partly allowed to the

extent indicated herein-above.

            Sd/-                                         Sd/-
(Sanjay K. Agrawal)                         (Rakesh Mohan Pandey)
      Judge                                         Judge

Nadim