Conviction,Sentence
U/s. 376-D of IPC,"Imprisonment for life with fine of Rs.1,000/- each and, in default of
payment of fine, additional R.I. for 06 months each.
U/s. 366 of IPC,"R.I. for 05 years with fine of Rs.500/- each and, in default of payment of
fine, additional R.I. for 02 months each.
U/s. 120-B of IPC,"Imprisonment for life with fine of Rs.1,000/- each and, in default of
payment of fine, additional R.I. for 06 months each.
U/s. 506(Part-II) of IPC,"R.I. for 03 years with fine of Rs.200/- each and, in default of payment of
fine, additional R.I. for 03 months each.
(A-6) were also seized vide Ex.P/ 18 and Ex.P/20 respectively. The aforesaid seized articles were sent for chemical examination vide Ex.P/24 and as,
per FSL report (though not exhibited, but annexed at Page Nos.224-226 of the paper-book) it has been opined that spots of human sperm/semen were",
found on the vaginal slides of the victim (PW-1) as also on the underwear of the accused-appellants namely, Kundaru @ Laxmi Narayan (A-1),",
Bajrangdas Mahant @ Anurag Sahu (A-2) and Chhavilal Nishad (A-6).,
(5) Further, during the course of investigation, on14.04.2013, statement of the victim (PW-01) under Section 161 of CrPC was recorded vide Ex.D/01,",
wherein she only implicated the names of accused- Kundaru @ Laxmi Narayan (A-1) and Bajrangdas Mahant @ Anurag Sahu (A-2) to be the,
perpetrators of crime. Thereafter, on 25.04.2014, supplementary statement of the victim (PW-01) was also recorded vide Ex.D/02, wherein in addition",
to accused- Kundaru @ Laxmi Narayan (A-1) and Bajrangdas Mahant @ Anurag Sahu (A-2), she also implicated the Chhavilal Nishad (A-6),",
pursuant to which, accused- Chhavilal Nishad (A-6) was immediately arrested on 25.04.2013 vide Ex.P/32. Further, on 26.04.2013, statement of the",
victim (PW-01) under Section 164 of CrPC was recorded vide Ex.D/04, wherein she implicated the names of accused- Kundaru @ Laxmi Narayan",
(A-1), Bajrangdas Mahant @ Anurag Sahu (A-2) and Chhavilal Nishad (A-6) who have committed sexual intercourse (rape) with her and further",
implicated the names of accused- Pradeep Gupta (A-3), Belal Bhoi (A-4) and Dinesh Pradhan (A-5), who have caught hold her and facilitated",
accused- Kundaru @ Laxmi Narayan (A-1), Bajrangdas Mahant @ Anurag Sahu (A-2) and Chhavilal Nishad (A-6) to have sexual intercourse (rape)",
with her. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against all the accused persons",
in the competent court of criminal jurisdiction and, ultimately, the case was committed to the Court of Sessions for hearing and trial in accordance with",
law, in which the accused-appellants abjured their guilt and entered into defence by stating that they are innocent and have been falsely implicated.",
(6) The prosecution in order to prove its case examined as many as 19 witnesses and exhibited 39 documents apart from FSL report, whereas the",
accused-appellants in support of their defence, though not examined any witness, but exhibited 06 documents.",
(7) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the accused-appellants",
herein for the offences mentioned in Para-02 of the this judgment and sentenced them as mentioned herein-above, against which these six appeals",
have been preferred by the appellants-accused questioning the impugned judgment of conviction and order of sentence.,
(8) Ms. Sareen Khan and Mr. Kamlesh Prasad, learned counsel appearing for the appellants- Kundaru @ Laxmi Narayan (A-1), Bajrangdas Mahant",
@ Anurag Sahu (A-2) respectively would submit that the accused-appellant Chhavilal Nishad (A-6) is main culprit of the instant crime. Appellants-,
Kundaru @ Laxmi Narayan (A-1) and Bajrangdas Mahant @ Anurag Sahu (A-2) have not committed any crime and they have been falsely,
implicated. Learned counsel further submit that though the names of appellants- Kundaru @ Laxmi Narayan (A-1) and Bajrangdas Mahant @,
Anurag Sahu (A-2) are mentioned in the written report (Ex.P/01) lodged by the victim (PW-01) as also in the FIR (Ex.P/02), but they have not",
committed any offence. Except the FSL report (not exhibited), there is no other legally admissible evidence available on record to connect the present",
appellants with the offence of rape. As such, the learned trial Court is absolutely unjustified in convicting both the appellants for offences mentioned",
hereinabove and they are liable to be acquitted of the charges.,
(9) Ms. Indira Tripathi, learned counsel appearing for the appellants- Pradeep Gupta (A-3), Belal Bhoi (A-4) and Dinesh Pradhan (A-5) would submit",
that neither in the written report (Ex.P/01) nor in the FIR (Ex.P/02) the names of these three appellants have been mentioned. Even in the statements,
of the victim (PW-01) recorded under Sections 161 of CrPC vide Ex.D/01 as also in the supplementary statement of the victim recorded vide,
Ex.D/02, the names of these three appellants are mentioned and, as such, they have been falsely implicated. There is no evidence, especially",
scientific/medical evidence, available on record to connect these three appellants for the offences in question. Learned counsel further submits that the",
Test Identification Parade (for short “TIPâ€) conducted vide Ex.P/11 by the Executive Magistrate, namely, Sanjay Somawar (PW-15) is not in",
accordance with law, as only five accused persons have been named in the TIP report (Ex.P/11) and accused-appellant, namely, Chhavilal Nishad",
(A-6) have not been named in it and, therefore, TIP is a weak piece of evidence and the identification of the present three appellants is not established",
beyond reasonable doubt. As such, their conviction with the aid of Section 376-D of IPC is liable to be set aside. Hence, the impugned judgment of",
conviction and order of sentence passed by the learned trial Court is liable to be set aside and the present appellants deserve to be acquitted of the,
said charges.,
(10) Mr. Maneesh Sharma, learned counsel appearing for the appellant- Chhavilal Nishad (A-6) would submit that the learned trial Court is absolutely",
unjustified in convicting the appellant for offences mentioned hereinabove, as the prosecution has failed to prove the offences beyond reasonable",
doubt. He further submits that the name of the appellant- Chhavilal Nishad (A-6) has not been mentioned in the written report (Ex.P/01) lodged by the,
victim (PW-01) as also in the FIR (Ex.P/02). Even otherwise, the name of appellant- Chhavilal Nishad (A-6) has not been mentioned in the statement",
of the victim recorded under Section 161 of CrPC on 14.04.2013 vide Ex.D/01. The victim has falsely implicated the appellant- Chhavilal Nishad (A-,
6) in her supplementary statement recorded on 25.04.2013 vide Ex.D/02, in which, she named the appellant- Chhavilal Nishad (A-6) for the first time.",
Further, no plausible reason has been assigned by the prosecution for recording supplementary statement of the victim (PW-01), as her statement",
under Section 161 of CrPC was already recorded on 14.04.2013 vide Ex.D/01. Learned counsel further submits that though in the FSL report (not,
exhibited) spots of human sperm/semen were found on the underwear of the appellant- Chhavilal Nishad (A-6), however, it would not be sufficient to",
base his conviction for the offences in question, as he being a major person and, in absence of further corroboration, the same will be a weak piece of",
evidence and cannot be relied upon to convict the appellant. Hence, the impugned judgment of conviction and order of sentence passed by the learned",
trial Court is liable to be set aside and the appellant- Chhavilal Nishad (A-6) deserves to be acquitted of the said charges.,
(11) Per-contra, Mr. Sudeep Verma, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the",
prosecution has proved the offences beyond reasonable doubt by leading evidence of clinching nature. He further submits that the names of,
appellants-Kundaru @ Laxmi Narayan (A-1) and Bajrangdas Mahant @ Anurag Sahu (A-2) have clearly been mentioned by the victim (PW-01) in,
written report (Ex.P/01), in the FIR (Ex.P/02) as also in her statements recorded under Sections 161 & 164 of CrPC vide Ex.D/01 & Ex.D/04",
respectively. Further, as per FSL report spots of human sperm/semen were found on their underwear. As such, there are sufficient evidence to",
convict these two appellants for offence under Section 376-D of IPC. As such, their appeals deserve to be dismissed. Learned State counsel further",
submits that so far as accused-appellants, namely, Pradeep Gupta (A-3), Belal Bhoi (A-4) and Dinesh Pradhan (A-5) are concerned, though their",
names have not been mentioned in the written report (Ex.P/ 01) and FIR (Ex.P/02), but they have been identified in TIP report (Ex.P/11), which has",
been conducted in accordance with law and duly proved by Sanjay Somawar (PW-15). Offence under Section 376-D of IPC also includes common,
intention and, though these three appellants have not committed rape with the victim (PW-01), but they have facilitated other accused-appellants for",
committing the same and, therefore, their conviction for the aforesaid offences is well merited and, consequently, their appeals are liable to be",
dismissed. Learned State counsel further submits that as regards accused-appellant- Chhavilal Nishad (A-6) is concerned, though he has not been",
named in the written report (Ex.P/01), in the FIR (Ex.P/02) and also in the statement of the victim (PW-01) recorded under Section 161 of CrPC vide",
Ex.D/01, but the victim has clearly mentioned/spelled out his involved in the crime while recording her supplementary statement vide Ex.D/02 as also",
in her statement recorded under Section 164 of CrPC (Ex.D/04). As such, the conviction and sentence passed by the learned trial Court against the",
appellant- Chhavilal Nishad (A-6) is also well merited and, therefore, his appeal deserves to be dismissed.",
(12) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost",
circumspection.,
(13) Considering the nature of oral and documentary as well as scientific evidence available on record coupled with the role played by each of the,
accused-appellants in the instant crime, we will consider the case/appeals of the appellants- Kundaru @ Laxmi Narayan (A-1) and Bajrangdas",
Mahant @ Anurag Sahu (A-2) together, appeals of accused-appellants- Pradeep Gupta (A-3), Belal Bhoi (A-4) and Dinesh Pradhan (A-5) together",
and appeal of appellant- Chhavilal Nisahd (A-6) separately one by one.,
Appeal of appellants- Kundaru @ Laxmi Narayan (A-1) and Bajrangdas Mahant @ Anurag Sahu (A-2):,
(14) It is the case of the prosecution that on the date of offence (i.e. on 13.04.2013), the victim (PW-01) had gone to her uncle’s house (mama-",
nani ka ghar) at Chandrapur on motor-cycle alongwith accused-appellant- Chhavilal Nishad (A-6), with whom at that time, she was engaged (though",
no formal engagement ceremony was held) and while returning back to Raigarh, in the night at about 09:00 PM, near Village Tetla, appellants-",
Kundaru @ Laxmi Narayan @ Petu (A-1), Bajrangdas Mahant @ Anurag Sahu (A-2) and Chhavilal Nishad (A-6) committed gang rape with her one",
by one and threatened her to kill and remaining accused-appellants, namely, Pradeep Gupta (A-3), Belal Bhoi (A-4) and Dinesh Pradhan (A-5) caught",
hold of her and facilitated Kundaru @ Laxmi Narayan (A-1), Bajrangdas Mahant @ Anurag Sahu (A-2) and Chhavilal Nishad (A-6) to have sexual",
intercourse (rape) with the victim (PW-01). The learned trial Court has basically relied upon the written report (Ex.P/01) and FIR (Ex.P/02) coupled,
with the FSL report (not exhibited) to convict the appellants- Kundaru @ Laxmi Narayan @ Petu (A-1) and Bajrangdas Mahant @ Anurag Sahu (A-,
2).,
(15) The victim (PW-01) in her statement before the Court has clearly stated that on the date of offence, while returning back to Raigarh, in the night",
at about 09:00 PM, near Village Tetla, appellant- Chhavilal Nishad (A-6) took her in the fields and committed sexual intercourse with her against her",
will and consent, thereafter, other accused-appellants also came to the spot, seeing whom, she tried to ran away from the spot, but the appellant-",
Kundaru @ Laxmi Narayan @ Petu (A-1) caught hold of her and, thereafter, firstly appellant- Kundaru @ Laxmi Narayan @ Petu (A-1) committed",
sexual intercourse (rape) with her and thereafter appellant- Bajrangdas Mahant @ Anurag Sahu (A-2) committed sexual intercourse (rape) with her,
and further they threatened her to kill and accused-appellants, namely, Pradeep Gupta (A-3) and Dinesh Pradhan (A-5) caught hold her and facilitated",
Kundaru @ Laxmi Narayan (A-1) and Bajrangdas Mahant @ Anurag Sahu (A-2) to have sexual intercourse (rape) with her. The victim (PW-01),
has been subjected to lengthy cross-examination on behalf of the appellants- Kundaru @ Laxmi Narayan (A-1) and Bajrangdas Mahant @ Anurag,
Sahu (A-2) separately, but nothing has been extracted from her to hold that the appellants- Kundaru @ Laxmi Narayan (A-1) and Bajrangdas Mahant",
@ Anurag Sahu (A-2) have not committed sexual intercourse (rape) with her and she is giving false statement in order to falsely implicate them.,
Furthermore, the written report (Ex.P/01), which has been lodged by the victim (PW-01) on 14.04.2013, the names of the appellants- Kundaru @",
Laxmi Narayan (A-1) and Bajrangdas Mahant @ Anurag Sahu (A-2) have been mentioned and on that basis FIR (Ex.P/02) has been registered by,
the police on 14.04.2013 at 11:15 hours, in which also the names of appellants- Kundaru @ Laxmi Narayan (A-1) and Bajrangdas Mahant @ Anurag",
Sahu (A-2) are mentioned. Thereafter, in statement of the victim (PW-01) recorded under Section 161 of CrPC on 14.04.2013 vide Ex.D/01, the",
names of both the appellants- Kundaru @ Laxmi Narayan (A-1) and Bajrangdas Mahant @ Anurag Sahu (A-2) have been mentioned. Even in the,
MLC report (Ex.P/17), duly proved by Dr. Meena Patel (PW-19) superficial abrasion and swelling was noticed on the right leg of the victim (PW-01)",
and, more particularly, as per FSL report (not exhibited) spots of human sperm/semen were found on the underwear of the accused-appellants-",
Kundaru @ Laxmi Narayan (A-1) and Bajrangdas Mahant @ Anurag Sahu (A-2) as also on the vaginal slides of the victim (PW-01).,
(16) In that view of the matter, the conviction of the appellants-Kundaru @ Laxmi Narayan (A-1) and Bajrangdas Mahant @ Anurag Sahu (A-2) for",
offences under Section 376-D & 506 (Part-II) of IPC is well merited, however, their conviction for offences under Section 366 & 120-B of IPC is not",
made out. However, since the minimum sentence prescribed for offence punishable under Section 376-D of IPC is 20 years’ RI each and no",
special reason has been assigned by the learned trial Court for imposing imprisonment for life on the appellants- Kundaru @ Laxmi Narayan (A-1),
and Bajrangdas Mahant @ Anurag Sahu (A-2), we deem it appropriate to reduce their period of sentence to 20 years’ RI from life imprisonment",
to A1 & A2 each for having committed offence under Section 376-D of IPC. We hereby hold accordingly.,
Appeals of appellants- Pradeep Gupta (A-3), Belal Bhoi (A-4) and Dinesh Pradhan (A-5):",
(17) The victim (PW-01) in her statement before the Court has stated that on the date and time of the offence, firstly appellant-Chhavilal Nishad (A-",
6) committed sexual intercourse with her and, immediately thereafter, appellants- Kundaru @ Laxmi Narayan (A-1), Bajrangdas Mahant @ Anurag",
Sahu (A-2), Pradeep Gupta (A-3) and Dinesh Pradhan (A-5) came over the spot and appellant- Chhavilal Nishad (A-6) had gone from the spot,",
thereafter, all the four accused-appellants, namely, Kundaru @ Laxmi Narayan (A-1), Bajrangdas Mahant @ Anurag Sahu (A-2), Pradeep Gupta (A-",
3) and Dinesh Pradhan (A-5) caught hold of her and appellants- Kundaru @ Laxmi Narayan (A-1) and Bajrangdas Mahant @ Anurag Sahu (A-2),
committed sexual intercourse with her one by one. However, in the written report (Ex.P/01), which was lodged at the instance of the victim (PW-01),",
the names of appellants- Pradeep Gupta (A-3), Belal Bhoi (A-4) and Dinesh Pradhan (A-5) have not been mentioned and even in her statement",
recorded under Section 161 of CrPC on 14.04.2013 vide Ex.D/01, the names of these three appellants have not been mentioned. Furthermore, in the",
supplementary statement of the victim (PW-01) recorded on 25.04.2013 vide Ex.D/02, the names of these three appellants is missing and there is no",
chemical examination report available against them. However, in order to identify them, TIP was conducted vide Ex.P/11 by the Executive",
Magistrate, namely, Sanjay Somawar (PW-15). A careful perusal of TIP report (Ex.P/11) would show that only names of five accused persons have",
been mentioned, except accused- Chhavilal Nishad (A-6), by the victim (PW-01) and in the note of the TIP report (Ex.P/11) it has only been",
mentioned that five persons have also participated in the TIP. Further, the Executive Magistrate, namely, Sanjay Somawar (PW-15), who has",
conducted the TIP, has clearly stated before the Court that the persons who have been included alongwith the accused persons in the TIP, their name,",
age, colour and height have not been mentioned in the TIP report (Ex.P/11), which in our considered opinion, ought to have been mentioned clearly in",
order to inspire confidence, as to the person of same age, colour and height were included to facilitate the correct identification proceedings.",
(18) The Supreme Court in the matter of Dana Yadav @ Dahu and others v. State of Bihar 1 has held that the previous identification in the test,
identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not,
law. It has also been held that evidence of identification of an accused in court by a witness is substantive evidence whereas that of identification in,
TIP is, though a primary evidence but not substantive one, and the same can be used only to corroborate identification of the accused by a witness in",
court.,
(19) In the instant case, since in the written report (Ex.P/01), in the FIR (Ex.P/02) and also in the statement of the victim (PW-01) recorded under",
Section 161 of CrPC vide Ex.D/02, the names of appellants- Pradeep Gupta (A-3), Belal Bhoi (A-4) and Dinesh Pradhan (A-5) have not been",
mentioned and even in the supplementary statement of the victim (PW-01), which was recorded on 25.04.2013 (i.e. after a period of 11 days) vide",
Ex.D/02, the names of appellants- Pradeep Gupta (A-3), Belal Bhoi (A-4) and Dinesh Pradhan (A-5) have not been mentioned. Further, in view of",
the above discussion, the TIP conducted vide Ex.P/11 by Sanjay Somawar (PW-15) was not conducted in accordance with law, as the persons who",
were included in the TIP, their name, age, colour and height have not been mentioned, which ought to have been mentioned in TIP report (Ex.P/11) in",
order to inspire confidence and, therefore, the presence of the appellants- Pradeep Gupta (A-3), Belal Bhoi (A-4) and Dinesh Pradhan (A-5) on the",
place of occurrence on the date and time of the offence is not established beyond reasonable doubt at all. Consequently, the appellants- Pradeep",
Gupta (A-3), Belal Bhoi (A-4) and Dinesh Pradhan (A-5) are entitle for acquittal on the basis of benefit of doubt and their appeals deserve to be",
allowed.,
Appeal of Chhavilal Nishad (A-6):,
(20) It is the case of the prosecution that the victim (PW-01) and the appellant- Chhavilal Nishad (A-6) both were engaged, though no formal",
engagement ceremony was held and, as per Para-06 of the statement of the victim (PW-01), wherein while answering to Question Nos.06 & 07, she",
has clearly stated that she had gone with the appellant- Chhavilal Nishad (A-6) on his motor-cycle on her own will and volition and she had also,
informed about the same to her mother and further the appellant- Chhavilal Nishad (A-6) has also informed to victim’s mother that he is taking the,
victim (PW-01) out for half an hour, however, surprisingly in the written report (Ex.P/01) lodged by the victim (PW-01) on 14.04.2013 and in the FIR",
(Ex.P/02) recorded on the same day as also in her statement recorded under Section 161 of CrPC on 14.04.2013 vide Ex.D/01, the name of the",
appellant- Chhavilal Nishad (A-6) was not mentioned. Thereafter, in the supplementary statement of the victim (PW-01) recorded on 25.04.2013 vide",
Ex.D/02, for the first time, the victim has named the appellant-Chhavilal Nishad (A-6) and there is no plausible reason for recording supplementary",
statement of the victim that to with a time gape of 10 days after recording of her statement under Section 161 of CrPC on 14.04.2013 and the reason,
assigned by the Investigating Officer, namely, Vivekanand (PW-13) is also not correct, as according to him, after recording victim’s statement",
under Section 164 of CrPC necessity to record her supplementary statement under Section 161 of CrPC had arisen, however, fact remains that",
victim’s statement under Section 164 of CrPC was recorded on 26.04.2013 vide Ex.D/04, whereas, her supplementary statement under Section",
161 of CrPC was recorded on 25.04.2013 vide Ex.D/02 i.e. prior to recording of her statement under Section 164 of CrPC (Ex.D/04). Even,
otherwise, in the supplementary statement of the victim recorded vide Ex.D/ 02, she has stated that the incident occurred on account of appellant-",
Chhavilal Nishad (A-6), therefore, he has to be punished for the offence of rape. Furthermore, though in the FSL report (not exhibited) spots of human",
sperm/semen were found on the underwear of the appellant- Chhavilal Nishad (A-6), but it would not implicate the him, as he being a major person.",
Hence, in view of aforesaid discussion, false implication of the appellant-Chhavilal Nishad (A-6) cannot be ruled out at the instance of the victim (PW-",
01) and he is liable to be acquitted.,
(21) In that view of the matter, the conviction and sentence of the appellant- Chhavilal Nishad (A-6) for offences under Section 376-D and 120-B of",
IPC, as awarded to him by the learned trial Court, is liable to be set aside and he is entitle for acquittal on the basis of benefit of doubt.",
(22) In view of foregoing analysis, this Court came to the following conclusions:",
(i) the conviction and sentence of the appellants-Kundaru @ Laxmi Narayan @ Petu (A-1) and Bajrangdas Mahant @ Anurag Sahu (A-2) for,
offences under Sections 366 & 120-B of IPC, as awarded to them by the learned trial Court, are hereby set aside and they acquitted of the said",
charge. However, while affirming/maintaining their conviction for offences under Section 376-D of IPC, we award them sentence for 20 years’",
rigorous imprisonment each by reducing it from imprisonment for life, but the fine sentence and default stipulation imposed upon them by the learned",
trial Court shall remain intact. Further, their conviction and sentence of offence under Section 506 (Part-II) of IPC shall remain as it is, as same is",
hereby maintained being well merited;,
(ii) the conviction and sentence of the appellants-Pradeep Gupta (A-3), Belal Bhoi (A-4) and Dinesh Pradhan (A-5) for offences under Section 376-",
D, 366 & 120-B of IPC, as awarded to they by the learned trial Court, are hereby set aside. They are acquitted of the said charges on the basis of",
benefit of doubt. Since they are already on bail, they need not to surrender before the trial Court, but their bail bonds shall remain in operation for a",
period of 06 months in view of provisions contained in Section 437-A of CrPC;,
(iii) the conviction and sentence of the appellant-Chhavilal Nishad (A-6) for offences under Section 376-D & 120-B of IPC, as awarded to him by the",
learned trial Court, are hereby set aside. He is acquitted of the said charges on the basis of benefit of doubt. Since he is already on bail, he need not to",
surrender before the trial Court, but his bail bonds shall remain in operation for a period of 06 months in view of provisions contained in Section 437-A",
of CrPC.,
(23) Consequently, Criminal Appeals No. 474/2016 and 598/2016, filed by the appellants, namely, Kundaru @ Laxmi Narayan @ Petu (A-1) and",
Bajrangdas Mahant @ Anurag Sahu (A-2) respectively are partly allowed to the extent indicated hereinabove, whereas, Criminal Appeals No.",
469/2016, 824/2017, 440/2016 & 489/2016 filed by appellants, namely, Pradeep Gupta (A-3), Belal Bhoi (A-4), Dinesh Pradhan (A-5) and Chhavilal",
Nishad (A-6) respectively are allowed.,
(24) Let a certified copy of this judgment alongwith original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail,
where the appellants are languishing for necessary information and action, if any.",
