Criminal Appeal No. 1501 of 2016 · High Court of Chhattisgarh · 2024

Judgment

2. Prashant Bonsake, S/o Maniram Bonsake, aged about 35 years, R/o Village Gukhera, Police Station & Post Office Arang, District Raipur (C.G.). Present R/o Village Indagaon, Post Office & Police Station Indagaon, District Gariyaband (C.G.) Subodh Masih, S/o Sanjay Masih, aged about 27 years, R/o Koyla Bhatti, Indagaon, Police Station & Police Office Indagaon, District Gariyaband (C.G.) Versus ... Appellant(s)  State of Chhattisgarh, through: District Magistrate, Gariyaband, District Gariyaband (C.G.) ... Respondent(s) __________________________________________________________ For Appellant No.1 :- Mr. Shrawan Ku. Chandel, Advocate/Panel Lawyer, Chhattisgarh High Court Legal Services Committee. For Appellant No.2 :- Mr. S.C. Verma, Senior Advocate, along with Ms. Neelam Jaiswani, Advocate. For Respondent/State :- Mr. Afroz Khan, Panel Lawyer. _____ _____________________________________________________ -2- (Cr. A. No. 1501 of 2016) Division Bench Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal C A V Judgment Sanjay K. Agrawal, J.

1. The present Criminal Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for brevity ‘CrPC’) has been preferred by the two Appellants herein, i.e., A-1 Prashant Bonsake and A-2 Subodh Masih, assailing the Judgment & Order dated

4.10.2016 passed by learned Additional Sessions Judge, Gariyaband (for brevity ‘Trial Court’) in Sessions Trial No.69/2015, by which each of the Appellants has been convicted for the offence punishable under Sections 376(D), 328, 506 (Part II), 354, 342 of the Indian Penal Code, 1860 (for brevity 'IPC') and sentenced in the following manner:- Conviction Sentence

1. Under Section 376(D) of IPC.

1. Rigorous Imprisonment for Twenty years. 2. Fine of Rs.200/-. 3. In default of payment of fine, to undergo additional Rigorous Imprisonment for One month. -3- (Cr. A. No. 1501 of 2016)

2. Under Section 328 of IPC. Under Section 506

3. (Part II) of IPC.

4. Under Section 354 of IPC.

5. Under Section 342 of IPC.

1. Rigorous Imprisonment for Four years. 2. Fine of Rs.200/-. 3. In default of payment of fine, to undergo additional Rigorous Imprisonment for One month.

1. Rigorous Imprisonment for Two years. 2. Fine of Rs.200/-. 3. In default of payment of fine, to undergo additional Rigorous Imprisonment for One month.

1. Rigorous Imprisonment for One year. 2. Fine of Rs.200/-. 3. In default of payment of fine, to undergo additional Rigorous Imprisonment for One month.

1. Rigorous Imprisonment for One year. 2. Fine of Rs.200/-. 3. In default of payment of fine, to undergo additional Rigorous Imprisonment for One month. All sentences have been directed to run concurrently.

2. Factual matrix of the case, as projected by the

prosecution and accepted by the Trial Court, unfolds as under:- (A) On 9.7.2015, at about 11:00 am, in Sikshak Colony, Village Indagaon, the two Appellants herein with an intention of outraging the modesty -4- (Cr. A. No. 1501 of 2016) of the Victim/Prosecutrix, used criminal force and locked her in a room and after administering her psychotropic substance, both the Appellants committed sexual intercourse with her and also threatened her to life, thereby committed the aforesaid offences. (B) According to the prosecution, on 9.7.2015 at about 9:30 am when the Prosecutrix, being an Anganbadi worker, was on way to Anganbadi centre, A-2 Subodh Masih came on his motorcycle and informed her about a meeting of Anganbadi workers and told that her mother is calling her. When she was coming back to her home and reached near Sikshak Colony at about 11:00 am, A-2 Subodh Masih came from behind and caught hold of her hands and applied a white paper on her forehead and took her to the room of A-1 Prashant Bonsake situated at Sikshak Colony and where he tried to outrage her modesty. When she raised an alarm, the Appellants ran away and locked the door of the room from outside and then she fell unconscious. On being informed, -5- (Cr. A. No. 1501 of 2016) police reached to the spot and recovered the Prosecutrix vide Panchnama (Exhibit P-1) and 3 nos. of brown colour broken bangles and vomit found the concrete floor were recovered vide Exhibit P-2. She was admitted to Community Health Center, Devbhog where she was medically examined vide Exhibit P-19A by Dr. Anju Sonwani (PW-13). After her treatment, she disclosed about the incident to her brother PW-1 Khilawan Yadav and father PW-10 Makardhwaj Yadav and then she reported the incident at Police Station Indagaon at 7:30 pm, on the basis of which FIR (Exhibit P-3) was registered against A-2 Subodh Masih for the offence punishable under Sections 354 & 342 of IPC. (C) The next day, the Prosecutrix went to the office of the Superintendent of Police, Gariyaband and orally reported that A-2 Subodh Masih and A-1 Prashant Bonsake both had committed sexual intercourse with her one by one on knife point. On the basis of the said complaint made by the Prosecutrix, after her and her father's consent, -6- (Cr. A. No. 1501 of 2016) she was medically examined at District Hospital, Gariyaband vide Exhibit P-23 by Dr. B. Bara (PW-11) vide Exhibit P-23 in which he opined that sexual intercourse was done with the Prosecutrix within 24hrs. After the query report given by Dr. B. Bara (PW-11), vaginal slide, pregnancy kit and undergarments of the Prosecutrix were seized vide Exhibit P-22. (D) The matter was further investigated by the Police Station Indagaon. Statement of the Prosecutrix and the concerned witnesses was recorded. Sections 376(D), 328, 506 (Part II), 34 were added and A-1 Prashant Bonsake and A-2 Subodh Masih were arrested and medically examined vide Exhibits P-9 & P-10 respectively. Spot Map was prepared vide Exhibit P-40 and Nazri Naksha was prepared by the Patwari vide Exhibit P-7. Memorandum Statement of A-1 Prashant Bonsake was recorded vide Exhibit P-23 pursuant to which, a kitchen knife was recovered vide Exhibit P-16. Underwear of A-2 Subodh Masih was seized vide Exhibit P-14 and the -7- (Cr. A. No. 1501 of 2016) underwear of A-1 Prashant Bonsake was seized vide Exhibit P-15. The seized articles were sent for chemical examination to the Forensic Science Laboratory, Raipur. In the FSL report received vide Exhibit P-27, no stain of semen or human sperms were found on the vaginal slide (‘A’), underwear (‘C’) & legings (‘D’) of the Prosecutrix and on the underwear (‘E’) of A-2 Subodh Masih and aslo on the underwear (‘F’) of A-1 Prashant Bonsake. However, in the FSL (Exhibit P-43), Alprazolam drug was found on the seized vomit ('A') of the Prosecutrix. Vide query report (Exhibit P-28), Dr. Anju Sonwani (PW-13) gave her opinion in respect of Alprazolam drug.

3. After completion of the investigation, both the Appellants were charge-sheeted for the offences punishable under Sections 354, 342, 376(D), 328, 506 (Part II) of IPC before the concerned Magistrate Court from where the matter, being triable by the Sessions Court, committed to the Trial Court where the charges framed were read out and explained to the Appellants who abjured their guilt, took a plea of false implication and entreated for trial. -8- (Cr. A. No. 1501 of 2016)

4. During the course of trial, in order to bring home the offence, the prosecution examined as many as 15 witnesses as PW-1 to PW-15 and exhibited 45 documents vide Exhibits P-1 to P-45. Statements of the accused Aappellants were recorded under Section 313 of CrPC, in which they denied the circumstances appearing against them in the evidence of the prosecution, pleaded innocence and false implication. However, in defence, statement of Khilawan Yadav was relied on as D-1.

5. After conclusion of the trial, the Trial Court, by impugned Judgment & Order dated 4.10.2016, on appreciation of the evidence available on record, both oral and documentary, found the Appellants guilty of the offences charged with and accordingly convicted and sentenced them in the manner as mentioned at the table shown in the opening paragraphs of this Judgment, which led to filing of the present appeal by the Appellants.

6. Mr. Shrawan Kumar Chandel, learned Counsel appearing for A-1 Prashant Bonsake, would submit that A-1 Prashant Bonsake has not committed any -9- (Cr. A. No. 1501 of 2016) offence and he has been falsely implicated in the instant crime. There is no evidence against him for commission of the offence in question. Therefore, he is entitled for acquittal and his appeal deserves to be allowed.

7. Mr. S.C. Verma, learned Senior Counsel appearing for A-2 Subodh Masih, would submit that the Trial Court is absolutely unjustified in convicting A-2 Subodh Masih for the crime in question and he is entitled to be acquitted, inasmuch as the alleged incident is said to have taken place at 11:00 am on 9.7.2015 and the Prosecutrix was medically examined at 2:30 pm by Dr. Anju Sonwani (PW-13) at Community Health Centre, Devbogh and treated her for unconsciousness, vomiting, headache and dizziness and the FIR was lodged by the Prosecutrix herself at 7:30 pm only for the offence punishable under Sections 354 & 342 of IPC. Subsequently, on the next day i.e., on 10.7.2015, at the instance of Police Station, Gariyaband, the Prosecutrix was again medically examined by Dr. B. Bara (PW-11) in District Hospital, Gariyaband and, on examination, the doctor found redness in her private -10- (Cr. A. No. 1501 of 2016) part and opined that sexual intercourse was done with her. Learned Senior Counsel would argue that the said subsequent medical examination of the Prosecutrix was done with the oral direction of the Superintendent of Police, Gariyaband, which could not have been done in light of Section 36 of CrPC and A-2 Subodh Masih has been falsely implicated as there was no offence of rape committed with the Prosecutrix otherwise she would have reported the said offence while lodging of the FIR (Exhibit P-3) at 7:30 pm on 9.7.2015 itself. In the FSL report (Exhibit P-27) also, no stain of semen and human sperms were found on the vaginal slide and the clothes of the Prosecutrix, though in the FSL report (Exhibit P-43), Alprazolam was found on the vomit of the Prosecutrix. As such, A-2 Subodh Masih is entitled to be acquitted of the offences in question and his appeal also deserves to be allowed. To support his contentions, learned Senior Counsel has relied on the decisions of the Supreme Court rendered in the matters of Dilip v. State of M.P.1, Lalliram Vs. State of M.P.2, Krishan Kumar Malik Vs. State of 1 2