Nafr High Court · 2025
Case Details
1 Reserved on : 04/04/2025 Delivered on: 02/09/2025 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 18 of 2019 xxx --- Appellant versus State Of Chhattisgarh Through Police Station - Jashpur, District - Jashpur Chhattisgarh., District : Jashpur, Chhattisgarh --- Respondent with CRA No. 118 of 2019 1.Nitesh Kujur S/o Norbut Kujur Aged About 22 Years R/o Village Kaikachar, Sadaktoli Jashpur District Jashpur Chhattisgarh., District : Jashpur, Chhattisgarh 2. Rostin Bek S/o Benjamin Bek Aged About 20 Years R/o Village Kaikachar, Turitoli Jashpur District Jashpur Chhattisgarh., District : Jashpur, Chhattisgarh 3. Leander Kujur S/o Xavier Kujur Aged About 22 Years R/o Village Kaikachar, Kodatoli Police Station Jashpur District Jashpur Chhattisgarh., District : Jashpur, Chhattisgarh 4. Sachin Kujur S/o Vipin Kujur Aged About 20 Years R/o Village Kaikachar, Police Station Jashpur District Jashpur Chhattisgarh., District : Jashpur, Chhattisgarh 5. Sangeet Kujur S/o Vipin Kujur Aged About 23 Years R/o Village Kaikachar, Police Station Jashpur District Jashpur Chhattisgarh., District : Jashpur, Chhattisgarh 6. Amrit Kujur S/o Xavier Kujur Aged About 20 Years R/o Village Kaikachar, (Manjhatoli) Police Station Jashpur District Jashpur Chhattisgarh., District : Jashpur, Chhattisgarh 7. Amit Bek S/o Norburt Bek Aged About 25 Years R/o Village Kaikachar, Turitoli Police Station Jashpur District Jashpur Chhattisgarh., District : Jashpur, Chhattisgarh 2 8. Asit Tirki S/o Fabiyanus Tirki Aged About 20 Years R/o Village Kaikachar, Beside Street Police Station Jashpur District Jashpur Chhattisgarh., District : Jashpur, Chhattisgarh ---Appellants State Of Chhattisgarh Through Police Station Jashpur District Jashpur Chhattisgarh., District : Jashpur, Chhattisgarh --- Respondent Versus For Appellants
Legal Reasoning
: Mr. Sanjay Agrawal and Mr. Krishna Tandon, For State : Mr. Devesh G. Kela, PL Advocates DB : Hon’ble Smt. Justice Rajani Dubey Hon’ble Shri Justice Sachin Singh Rajput Per Sachin Singh Rajput, J. C A V Judgment In all, nine accused persons are there, out of whom one (xxx) being minor was tried before the Special Sessions Judge (Juvenile Court)/Additional Sessions Judge (FTC) Jashpur, District Jashpur, CG in Special Juvenile Criminal Case No. 01/2018 whereas other eight accused persons were tried before the Additional Sessions Judge (FTC) Jashpur, District Jashpur, CG in Sessions Trial No. 03/2018, convicted under Section 376(D) IPC and sentencing each of them to RI for 20 years with fine of Rs. 1000/- plus default stipulations. Both the trials led to passing of even dated impugned judgments dated 06.12.2018. Since these two appeals
Decision
stem from the same incident, they are disposed of by this common judgment. 2. This is a case where the prosecutrix aged about 20 years is said to have been subjected to forcible sexual intercourse by ten persons, two of them juvenile. Incident is said to have taken place on 05.09.2017 at about 5:30 PM whereas the FIRs (Ex. P-16) and (Ex.P-1) respectively in both the appeals) were lodged on 09.09.2017 at about 12:50 PM by the prosecutrix against the unknown persons. According to the FIR, the prosecutrix was resident of village Dharen and was educated up to class IX. For about one month therefrom she was working as maid in the house one Tirki Madam at village Gholen. On 01.09.2017 she had been to her native village to celebrate Karma festival and on 05.09.2017 she had come to Jashpur to catch bus for village Gholen. At Jashpur she went to her sister’s house 3 and then at about 2:30 – 3:00 PM she came to the market area but feeling unwell she took rest in a cloth shop. At that time, one man approached her and asked about her nativity. After she told him to be of village Dharen, he too introduced himself to be the resident of village Barpani. As she informed about her being uncomfortable to her sister, she came to Bus Stand, Jashpur and at that time the said man was also over there. Her sister asked that man to comfortably take the prosecutrix with him. After getting down from the bus at Kaikachhar, when she was walking along to her village in the company of that man, on the way falling in midst of jungle 5 boys followed them. On this, they ran in two different directions, and she hid herself behind a big stone. At that time, those boys besieged her in all directions; two of them caught hold of her; disrobed her and after removing her undergarment they committed rape on her one after the other, which made her unconscious. On regaining consciousness, she found herself in paddy field and just blouse and petticoat was on her body. Number of injuries over her body were there and she was feeling pain. She somehow went to her acquaintance at village Hataklata and demanded a Sari to wear. After wearing Sari she got back to her village Dharen but not to her own house rather to the house of her sister. Her parents are also stated to have come there and then she informed them about the incident. Giving description of the culprits, she claimed to identify them if they appeared before her. After thus lodging the FIR against unknown persons under Sections 341, 376 (d) and 307 IPC the prosecutrix with her consent was sent for medical examination. Thus after completion of investigation, charge sheet was filed against 9 (8+1) persons for the offence punishable under sections 341, 376 (d) 307, 34, 120-B IPC followed by framing of charge accordingly. Having denied the charges, the accused/appellants claimed trial. 3. Prosecution examined 22 witnesses to prove its case. 313 CrPC statements were also recorded where the accused/appellants pleaded their innocence and false implication in the case. 4. Conclusion of trials led to imposition of conviction and sentence of the 4 accused/appellants as detailed above. Hence these appeals. 5. (i) Arguments of the parties: That there is unexplained delay of 5 days in lodging the report. (ii) That Test Identification Parade (TIP for short) has not been conducted in respect of accused/appellants Amrit Kujur, Amit Beck and Ashisk Tirkey. Even as regards others, the TIP is not believable as the description of the accused persons given by the prosecutrix does not match to their complexion and built. (iii) There is delay in sending the seized articles such as vaginal slides and the cloths for chemical examination and even the DNA report is not resorted to. (iv) That FSL report is not reliable as the slides so prepared were not kept in safe custody before being sent for examination, and as the seizure of the same was made on 11.09.2017 and they were sent for examination on 26.09.2017, there is every possibility of tempering with the same. (v) That the appellants are thus entitled to the benefit of doubt as the prosecution has utterly failed to prove its case beyond reasonable doubt. (vi) Reliance is placed on the decisions of Supreme Court in the matter of Krishna Kumar Malik v. State of Haryana (2011) 7 SCC 130 and in the matter of Santa Singh v. State of Punjab AIR 1956 SC 526. 6. In contrast to the submissions of the accused/appellants, it is submitted by the State counsel that looking to the manner in which they besieged a helpless lady in the dense forest and after satisfying their lust turn by turn they threw her taking to be dead in a paddy field and during this anomalistic act of the accused/appellants, she suffered multiple abrasions all over her body. He submits that the delay in such matters is not of any significance because before lodging the report, deliberations in the family are normally undertaken because the image of the entire family including the victim is at stake which she is supposed to carry all along throughout her life. He submits that right from the beginning i.e. FIR to statements under sections 161 and 164 CrPC the victim has been very consistent in putting forth the sequence of events she was made to come across but at the time of giving the 5 evidence in the Court she appears to have been won over by the large gathering of the accused/appellants. He submits that even the boy the prosecutrix was accompanying, has duly supported the case of the prosecution stating to have seen the entire incident with his own eyes. Thus the judgment impugned, according to the State counsel, is well founded and calls for no interference in these appeals. 7. Counsel for the parties have been given a patient hearing and the evidence on record including the judgment impugned have been bestowed thoughtful consideration. 8. To recapitulate, the incident where the prosecutrix is stated to have been besieged by ten accused persons, taken in the jungle and was subjected to rape by them one by one, had taken place on 05.09.2017, FIR was lodged by her on 09.09.2017 and her statement under Section 164 CrPC was recorded on 12.09.2017. 164 CrPC statement of Miliyush Ekka who at the relevant time was accompanying the prosecutrix was also recorded on the same day. In 164 CrpC statement the prosecutrix has made almost the same statement as is contained in the FIR. The gist being that on the date of incident when she was accompanying Miliyush Ekka to her village, on the way through the dense forest five persons came from behind, chased and besieged them and after disrobing her they committed forcible sexual intercourse turn by turn. They also threatened her of life, and that on account of her neck being pressed she had become almost unconscious. On the following day she found herself in the field in petticoat and blouse. She then went to the house of her acquaintance, asked for a Sari and after wearing the same she went away. She took up home remedies for the injuries and on 09.09.2017 she went to the police station and lodged the report. She has stated that 3-4 more boys were also involved in the crime, but being perplexed she took the name of only five while lodging the report. She then described the built, stature and who was wearing what etc. 9. In the statement made under Section 164 CrPC Miliyush Ekka who at the relevant time was with the prosecutrix has also stated that on the date of incident 6 when he was going to his village along with the prosecutrix, on the way passing through the jungle 10 boys known to him well came from behind, started following them but he hid himself behind a stone. After 5-7 minutes when he tried to see as to where the prosecutrix was, he saw her being subjected to forcible sexual intercourse turn by turn. Though prosecutrix was crying, on account of fear he did not go there. Those boys then dragged the prosecutrix who is just in blouse and petticoat, lifted her on shoulders and dumped in the field. After that he somehow came to his house but on account of fear he did not inform anyone about the incident. 10. In Court statement also the prosecutrix has stated that after getting down from the bus, she walked along to the village with Miliyush Ekka, on the way 4-5 boys started chasing them, and while running away she and Miliyush Ekka took different paths but she fell down in the meantime. Thereafter, she is stated to have fallen unconscious and regained consciousness on the next day. Multiple abrasions were there on her whole body, she was taken to the hospital by her father and was given treatment, and then she lodged the report. She is also stated to have identified some boys. This witness at this stage has then been declared hostile. In cross examination also she has stated as to the manner in which she was chased and disrobed her. She has also admitted that on the next day when she found herself in the field, only blouse and petticoat was on her body. She has stated that sari was not on her body. Injuries and resultant pain has been reaffirmed by this witness. She has reiterated that for the whole night she remained lying in the field. 11. Miliyush Ekka (PW-3 in CRA 118/2019 and PW-17 in CRA No. 18/2019) has stated that he met the prosecutrix in Jashpur where her sister asked him to accompany her (prosecutrix) up to village Dharen. They then boarded the bus for Dharen and got down at Kaikachar. He has stated that after they might have walked about half a kilometer distance, the accused persons who were known to him started following them and then they took to different routes. All the accused persons then followed the prosecutrix and threatening her of life they committed 7 rape on her. He is stated to have seen the incident while hiding behind a stone. He has reiterated that all the accused persons disrobed the prosecutrix and took their turn to commit rape on her. He has stated that after the incident of rape accused Asit and (xxx) removed the prosecutrix aside. Prosecutrix had no clothes on her body. This witness though has been declared hostile, in cross examination also this witness has been consistent in stating as to how he and the prosecutrix took different routes after being chased by the accused persons; how the prosecutrix was subjected to rape by them one by one; how after the act being over she was lifted on shoulders and dumped in the low lying field. 12. Sandhya Lakda (PW-10 in CRA 118/2019 and PW-03 in CRA No. 18/2019) is the witness to whose house the prosecutrix had gone on the next day in petticoat and blouse and asked for clothes to wear. She has stated that 7-8 months prior thereto the prosecutrix had come to her house in petticoat and blouse and was not in a position to speak. On sari being demanded, she gave it to her and after wearing the same she went home. After this, she too has been declared hostile. In cross examination, she has stated that as the mud was there on the body of the prosecutrix, the injuries were not visible. She has reiterated that the prosecutrix was not in a position to speak and walk properly. Parents of the prosecutrix (PW-2 and PW-6 in CRA No. 118 of 2019 and PW-1 and PW-6 in CRA No. 18 of 2019) have not stated anything in relation to the incident and have been declared hostile. 13. Dr. Mamta Singh (PW-8 in CRA No. 118 of 2019 and PW-19 in CRA No. 18 of 2019) is the witness who medically examined the prosecutrix and gave her report (Ex.P-46). This witness has stated that there were multiple abrasions and the pointed injuries around the neck, in the forearm extending up to the shoulders and stomach and back of the prosecutrix. She has opined that intercourse having taken place with the prosecutrix. In cross-examination also this witness has been firm to what she has stated in the examination in chief. Dr. Anuranjan Toppo (PW-7 in CRA No. 118 of 2019 and PW-18 in CRA No. 18 of 2019) is the witness who medically examined the accused/appellants has opined that they were capable of performing 8 sexual intercourse. Shivanand Tiwari (PW-22 in CRA No. 118 of 2019 and PW-21 in CRA No. 18 of 2019) is the investigating officer who has duly supported the case of the prosecution. Seizure of sari, broken pieces of bangles, fair and lovely cream etc. were seized by him from the spot i.e. jungle where the incident had taken place. This apart, as per FSL report (Ex.P-61 in CRA No. 18 of 2019 and Ex. P-93 in CRA No. 118 of 2019) semen and human spermatozoa were found on the vaginal slides, underwear and petticoat of the prosecutrix, underwear of the accused persons. 14. Having thus gone through the evidence of the witnesses in particular that of the prosecutrix and Miliyush Ekka who was all along the prosecutrix up to the place in the jungle where they parted their ways on being chased by the accused/appellants, the incident of gang rape cannot be set at naught. The narration of the sequence of events graphically portrayed by the prosecutrix demonstrates as to how she was chased up to a secluded place in the jungle by the accused persons, ten in number, stripped off and then tossed amongst them to take their turn to satisfy their perverted thirst for sex. The accused/appellants then pounced over the prosecutrix just like a wild hungry beast does after coming to see the fresh slice of meat. In her 164 CrPC statement recorded before Chief Judicial Magistrate, the prosecutrix has described the entire incident saying that on the date of incident when she was accompanying Miliyush Ekka to her village, on the way through the dense forest five persons came from behind, chased and besieged them and after disrobing her they committed forcible sexual intercourse turn by turn. They are also said to have threatened her of life, and that on account of her neck being pressed she had become almost unconscious. She has also stated that on the following day she found herself in the field, only petticoat and blouse was on her body. Thereafter, in examination-in-chief made in the Court also she has described as to how the accused persons chased them in the jungle. Thereafter she is stated to have become unconscious and did not know as to what happened then. However, the next day she is stated to have found herself lying in the field 9 wearing blouse and petticoat only, and sari was not there on her body. She is then stated to have gone to her acquaintance, demanded a sari and went away after wearing the same. Sandhya Lakda is also stated to have given the sari to the prosecutrix when she had come to her in blouse and petticoat. Though in cross examination the prosecutrix appears to have been won over and chose to come in the denial mode yet she has stated that next day of the incident she found herself in blouse and petticoat, number of abrasions were there on her body and that she was feeling pain. Miliyush Ekka has also corroborated the version of the prosecutrix on material particulars. He is stated to have seen the entire incident of gang rape taking place in the jungle where all accused persons committed sexual intercourse with her one after the other. He has further stated that on account of fear he could not come to the rescue of the prosecutrix. Evidence of the lady doctor has also supported the case of the prosecution describing multiple abrasions and the pointed injuries around the neck, in the forearm extending up to the shoulders and stomach and back of the prosecutrix, and has opined that intercourse had taken place with her. Investigating Officer is the investigating officer who has duly supported the case of the prosecution. Seizure of sari, broken pieces of bangles, fair and lovely cream etc. were seized by him from the spot i.e. jungle where the incident had taken place. As per FSL report also semen and human spermatozoa were found on the vaginal slides, underwear and petticoat of the prosecutrix, underwear of the accused persons. 15. Though prosecutrix has been declared hostile yet looking to her previous statement recorded before the Chief Judicial Magistrate and the multiple injuries present over her body, her entire testimony cannot be discarded. Dealing with the testimony of hostile witness in the matter of Selvamani v. The State Rep. By the Inspector of Police reported in 2024 INSC 393 considering its earlier decision the matter of Vinod Kumar v. State of Punjab reported in (2015) 3 SCC 220, it has been held that the evidence of a prosecution witness cannot be discarded, effaced or washed off just because it chose to treat him/her hostile and then proceeded to 10 cross examined her but on the contrary such testimony can be accepted to the extent their version is found to be dependable on a minute analysis thereof. Extract of the said decision is reproduced as under:- 10. This Court, in the case of C. Muniappan and Others v. State of Tamil Nadu, (2010) 9 SCC 567, has observed thus: “81. It is settled legal proposition that : (Khujji case, SCC p. 635, para 6) ‘6. … the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.’ 82. In State of U.P. v. Ramesh Prasad Misra, (1996) 10 SCC 360] this Court held that (at SCC p. 363, para 7) evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC 543], Gagan Kanojia v. State of Punjab, (2006) 13 (2010) 9 SCC 567 : 2010 INSC 553 SCC 516], Radha Mohan Singh v. State of U.P.,(2006) 2 SCC 450], Sarvesh Narain Shukla v. Daroga Singh, (2007) 13 SCC 360] and Subbu Singh v. State, (2009) 6 SCC 462. 83. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence. 84. In the instant case, some of the material witnesses i.e. B. Kamal (PW 86) and R. Maruthu (PW 51) turned hostile. Their evidence has been taken into consideration by the courts below strictly in accordance with law. Some omissions, improvements in the evidence of the PWs have been pointed out by the learned counsel for the appellants, but we find them to be very trivial in nature. 85. It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the 11 matter and shake the basic version of the prosecution's witness. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses. Vide Sohrab v. State of M.P., (1972) 3 SCC 751, State of U.P. v. M.K. Anthony, (1985) 1 SCC 505, Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217, State of Rajasthan v. Om Prakash, (2007) 12 SCC 381, Prithu v. State of H.P., (2009) 11 SCC 588, State of U.P. v. Santosh Kumar, (2009) 9 SCC 626 and State v. Saravanan, (2008) 17 SCC 587” 17. Secondly, the TIP was conducted on 10.09.2017 where the prosecutrix duly identified accused Nitesh Kujur, Rostin, Sachin, Liyendar and Sanjeet by putting her hand on their head. It is surprising why only 5 accused persons were put to TIP when all throughout the prosecutrix and Miliyush Ekka have clearly stated that total persons involved in the incident were 10. Even otherwise, in view of the categorical statement of these two witnesses describing the manner in which the incident of rape took place and the prosecutrix was then dumped in the field taking her to be dead, the accused/appellants cannot derive any benefit from the flaw on the part of the prosecution. More importantly, Miliyush Ekka has gone on to state that all the accused persons being resident of village Kaikachhar were known to him even prior to the incident. In this view of the matter the decision cited by the appellant’s counsel in Krishna Kumar Malik (supra) being distinguishable on facts is of no help to them. 18. Furthermore, FSL report (Ex.P-61) clearly indicates the presence of semen and human spermatozoa on the vaginal slides, underwear and petticoat of the prosecutrix, underwear of the accused persons. Of course, DNA test being conducted is advisable to the prosecution to get closer to the truth but it does not mean that if it is not done the entire case of the prosecution would collapse. DNA apart, ample evidence is there to show the complicity of the accused/appellants in the crime in question of raping the helpless prosecutrix in the dense forest. The evidence thus speaks in volumes against the appellants and therefore mere 12 technical lapses in the case of the prosecution cannot provide succor to the accused/appellants. 19. The delay in lodgment of the report as argued by the counsel for the appellants, as held in more than one decisions of the Supreme Court that in the cases of such character involving the reputation of not only the victim but the entire family, before straightway going to the police station the consequences of the same are deliberated upon in the family and in this process sufficient amount of time naturally passes by, which cannot be taken to be so serious for the prosecution to prove its case. 20. Having thus viewed the factual and legal position holding the field, this Court is of the considered opinion that it is the accused/appellants who taking advantage of the helplessness of the prosecutrix dragged her inside the jungle and committed rape on her turn by turn. In the incident she suffered number of injuries on her body. Case of the prosecution has been duly supported by the doctor who medically examined the victim according to whom several abrasions were present on her body and the sexual intercourse was also confirmed. Minor contradictions and omissions in the testimony of the witnesses as pointed out by counsel for the appellants are negligible especially when the other circumstances fully establish commission of the offence. Being so, the findings recorded by the trial Court appear to be fully in accord with the evidence of the witnesses and therefore, this Court does not find any need to take a contrary view to that. The judgment impugned is thus affirmed and the appeals being devoid of any substance are liable to be dismissed. Order accordingly. Consequences to follow. Sd/- (Rajani Dubey) Judge Jyotshi/Pawan Sd/- (Sachin Singh Rajput) Judge