Nafr High Court
Case Details
1 2025:CGHC:16834-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 806 of 2024 1 - Bijuram Oyami Aged About 20 Years S/o Hungaram Oyami R/o Gayatapara Kadampal, P.S. Kirandul, District Dantewada (C.G.) 2 - Budhru Oyami Aged About 22 Years S/o Hunga Oyami R/o Nayapara Kadampal, P.S. Kirandul District Dantewada (C.G.) Versus ... Appellant(s) State of Chhattisgarh Through Police Station Bacheli, Dist. Dantewada (C.G.) ... Respondent For Appellant(s) : Mr. Priyank Rathi, Advocate. For Respondent(s) : Mr. Hariom Rai, Panel Lawyer. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Arvind Kumar Verma , Judge Judgment on Board Per Ramesh Sinha, Chief Justice 09/04/2025 1. Proceedings of these matters have been taken through Video Conferencing. 2. The appellants have preferred this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, the Cr.P.C.) questioning the impugned judgment dated 03.04.2024 passed by the learned Additional 2 Sessions Judge, (F.T.C.) South Bastar, Dantewada, in Sessions Trial No. 31/2023, whereby the appellants have been convicted and sentenced as under: Conviction Sentence Fine In default of Under Section payment of fine 366 read with Rigorous Rs. 1000/- 1 year R.I. more. Section 34 of the imprisonment Indian Penal Code (for short, the (for short, the IPC) R.I.) for 10 376D of IPC years Life imprisonment which shall be till the remainder of Rs. 2000/- 1 year R.I. more 304-II IPC life R.I. years for 10 Rs. 2000/- 1 year R.I. more. All the sentences have been directed to run concurrently. 3. The appellants were charged for the offences punishable under Section 366 read with Section 34, Section 376D and Section 304 Part II read with Section 34 of the IPC alleging that on 24.12.2022 at about 4:00 p.m., in furtherance of their common intention, they together abducted the victim/deceased, who is a major lady, knowing it to be likely that the deceased would be compelled or seduced to have illicit sexual intercourse and the appellants, while forming a group and acting in furtherance of their common intention, raped the deceased forcefully against her will and without her consent, thereby committing the offence of gang rape. On the said date, time and place of the incident, the appellants, after consuming liquor in furtherance of their common intention, tried to forcibly make the deceased ride the motor cycle due to 3 which the deceased fell on her head twice, which resulted in her death and such act was done with the knowledge that it was likely to cause death but without any intention to cause death or such bodily injury which is likely to cause death, which comes under the category of culpable homicide. 4. The case of the prosecution, in brief is that on 24.12.2022 at about 04:00 p.m., the appellants made the deceased/victim sit on a motorcycle and kept roaming around after drinking alcohol together. When the intention of the appellant-Budharu Oyami got bad, he took the deceased on the motorcycle to return home to Bacheli and at 07:30 p.m., near Padhapur village, making the excuse of being heavily intoxicated, stopped the motorcycle on the road and the appellants and the deceased/victim lay down there. Thereafter, the appellants took the deceased/victim to a deserted place near Padhapur mobile tower and intended to have physical relations with her and lifted the deceased to take her to Padhapur mobile tower, but due to excessive intoxication of alcohol, the deceased fell down. Even after this, the appellants tried to lift the deceased again. At that time also the deceased had fallen down due to which she suffered serious head injuries. Despite that, the appellants forcefully made the deceased/victim sit on the motorcycle and took her to Padhapur mobile tower where accused Butharu had made physical relations with the deceased in unconscious state and appellant-Biju instigated him to commit the crime. Thereafter, the appellants left the deceased/victim in unconscious state and went away. 5. On receiving information that the deceased was lying unconscious near Padapur mobile tower, the deceased was brought to Apollo Hospital NMDC Bacheli for treatment, the information of which was given in 4 writing to Bacheli Police Station by Apollo Hospital Bacheli. On receiving the said information, the deceased’s father also came to Apollo Hospital Bacheli to see her where he came to know that the deceased had expired. Apollo Hospital Bacheli had given written information about the death of the deceased to Police Station, Bacheli and the father of the deceased had also informed the Police Station, Bacheli about the same. 6. On the information given by the informant, father of the deceased (PW-1) to the police, the case was taken into investigation by registering Merg bearing No. 24/2022 at Police Station, Bacheli. Notice was given to the witnesses before the proceedings of inquest. The postmortem of the deceased was conducted, in which the Doctor gave the opinion
Facts
regarding the immediate sexual assault on the deceased, an FIR was registered against an unknown person under section 376 of the IPC bearing Crime No. 80/2022. Before the postmortem, the clothes worn by the deceased in Apollo Hospital Bacheli, green grey sleeved sweater, yellow black kurta, khaki coloured salwar (leggings), grey coloured panty were seized on the presentation of the mother (PW-2) of the deceased. After postmortem, the doctor prepared and preserved the pieces of various body parts of the deceased, blood, nail clippings, blood stained cotton, vaginal swab, vaginal slide, anal slide and swab, pubic hair and advised for FSL and also suggested that if the FSL report is found positive then DNA testing should be done. 7. The appellants were taken into custody on the basis of suspicion and their memorandum statement were recorded and the appellants confessed to have committed the crime. On presenting by the appellant- Budharu Oyam, the motorcycle used in the incident was seized from Padhapur forest and a mobile phone was seized from the house of 5 appellant-Budharu and a seizure memo was prepared. As the accused were found to be involved in the crime, they were arrested and information regarding their arrest was given in writing to their family members. Accused Budharu was medically examined. 8. The site map of the place of incident was prepared. The statement of the informant and other witnesses were recorded. The documents relating to primary treatment of the deceased were collected and a spot map was also got prepared from the Patwari. The articles seized during the investigation were sent to the FSL, Jagdalpur through the Superintendent of Police, Dantewada. 9. The police submitted its report alongwith the charge sheet against the appellants for the offences under Sections 376, 304, 34 of the IPC before the Judicial Magistrate First Class, Bacheli, who committed the case to the Court of Sessions where the case was registered as Sessions Trial No. 31/2023. The learned trial Judge framed charges against the appellants which was denied and the appellants prayed for trial. 10. In order to bring home the offence, the prosecution examined as many as 13 witnesses, namely the father of the deceased (PW-1), mother of the deceased (PW-2), Raju Kunjam (PW 3), Sukhram Kunjam (PW 4), Dr. Tikendra Dewangan (PW-5), Patwari, Mrs. Malti (PW-6), Inspector Govind Yadav (PW-7), Vijay Kumar Irami (PW-8), Baman Kunjam (PW- 9), C.P.Kanwar Sub-Inspector (PW-10), Dr. Premlata Sahu (PW-11), Mangali Kunjam (PW-12) and Dr. P.C. Mahanta (PW 13) and exhibited as many as 48 Exhibits. 11. The statement of the appellants under section 313 CrPC were recorded wherein they expressed ignorance to most of the questions and some of 6 them were denied as well. They only stated that they were innocent. They did not lead any evidence in support of their case. 12. The learned trial Judge, after considering the evidence on record, convicted the appellants as detailed in the opening paragraph of this judgment. Hence, the present appeal by the appellants/convict.
Legal Reasoning
placed on the judgment of this Court in Krishna Jhali (supra) is not of any assistance as the same is distinguishable on facts. 29. From the above analysis, we are of the considered opinion that the prosecution has been successful in proving its case beyond reasonable doubt and the learned trial Court has not committed any legal or factual error in arriving at the finding with regard to the guilt of the appellants/convicts. 30. Accordingly, the appeal being devoid of merit is liable to be and is hereby dismissed. 31. The appellants are stated to be in jail. They shall serve out the remaining part of the sentence as has been awarded to them by the learned trial Court. 32. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentences to serve the same on the appellants informing them that they are at liberty to assail the present judgment passed by this Court by 13 preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 33. Let a certified copy of this judgment alongwith the original record be transmitted to trial Court concerned forthwith for necessary information and action, if any. (Arvind Kumar Verma) (Ramesh Sinha) Sd/- CHIEF JUSTICE Sd/- JUDGE Amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.04.15 17:41:44 +0530
Arguments
13. Mr. Priyank Rathi, learned counsel appearing for the appellants submits that the case is based on circumstantial evidence. There is no eye witness to the incident neither the appellants were named in the FIR. The injuries sustained by the deceased is accidental and there is nothing to suggest that it was caused due to any negligence of the appellants. There is no evidence on record to show that the appellants had committed rape upon the deceased as the FSL report is negative and no human sperms have been found either in the clothes of the deceased nor on her private parts. The learned trial Judge has convicted the appellants merely on the basis of last seen theory which is a weak kind of evidence. Raju Kunjam (PW-3) and Sukhram Kunjam (PW-4), who are close relatives of the victim have falsely implicated the appellants in the offence in question. The injuries found on the private part of the victim could have been caused because the deceased was on ventilator and catheter was installed in her private part which can also be the reason of such injuries. During the course of postmortem only, the injury in the private part was discovered and not earlier while she was admitted in the hospital. He lastly submits that only on the basis of last seen theory, the appellants cannot be convicted when there is no other incriminating evidence against them. In support of his contentions, he relies on a judgment of this Court in Krishna Jhali @ Krishna Kumar Jhali v. State of Chhattisgarh, {Cr.A. No. 2172/2023, decided on 29.04.2024}. 14. On the other hand, Mr. Hariom Rai, learned Panel Lawyer appearing for 7 the State/respondents supports the judgment of conviction and order of sentence passed by the learned trial Court and submits that the prosecution has fully established that it was the appellants alone who had committed the crime in question. The medical evidence clearly supports the case of the prosecution. The judgment of conviction and sentence awarded by the learned trial Court being just and proper, needs no interference. 15. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 16. On the last date of hearing i.e. on 12.11.2024, this Court had directed the learned counsel for the State to produce the medical examination report of the appellants who were medically examined at the time of judicial remand as it was stated that the said medical examination report was attached separately and was part of the case diary. 17. Today, Mr. Hariom Rai, learned State counsel submits that though the appellants were medically examined, however, there is nothing substantial in the said report as it was only observed in the report that the appellants were medically fit to be to be lodged in the jail. 18. The appellants are accused of having committed rape and also caused death of the deceased. The deceased was found lying unconscious and thereafter she was taken to the hospital where she succumbed to the head injuries. 19. In the short postmortem report (Exhibit P/4) which was conducted by two Doctors , one of Community Health Centre, Kirandul and the other of 8 District Hospital Dantewada, the cause of death has been stated to be shock and hemorrhage as a result of head injury. However, it was advised to preserve viscera for chemical analysis. The Doctors have also found signs of recent forceful penetration in vagina and they have not ruled out sexual violence and as such, samples were preserved for detection of semen and sperms. However, the manner of death has been opined to be accidental with an advise that the circumstantial evidence and police investigation should be considered. 20. In the detailed postmortem report (Exhibit P/3), Dr. Tikendra Dewangan (PW-5) and Dr. Premlata Sahu (PW-11), on external examination, found one crescent shaped reddish colour nail abrasion present over front of abdomen 4 c.m. left to umblicus, one irregular shaped reddish colour abrasion of size 2 c.m. x 0.5 c.m. present over back aspect at right elbow, one irregular shaped reddish abrasion of size 1 c.m. x 0.6 c.m. present over right anterior superior illiac spine. On examination of the skull and spinal chord, one reddish colour under scalp contusion of size 2 x.m. x 1 c.m. was present. All the coverings of the brain were intact. Thick layer dark red colour subdural hemorrhage was present over right frontal and right parieto temporal region of brain. Brain was congested. Further, on examination of the private part, one tear laceration of size 1.5 c.m. x 0.5 c.m. x subcutaneous deep vertically was present over lower margin of vagina at fourchette. Its lower end was 1 c.m. above anal opening. Margins of wound were reddish showing extravasation of blood. Reddish colour contusion was present inner to labia minor on both sides. The Doctors have opined the cause of death to be shock and hemorrhage as a result of head injury. The viscera was also preserved for chemical analysis. 21. One of the ground raised by the learned counsel for the appellants is that 9 there was no semen or sperms found either in the body or the clothes of the deceased. However, in this regard, it is to be noted that it is not necessary that after commission of rape, there would have been discharge of semen. Penetration itself was sufÏcient to hold the appellants guilty of the offence. Dr. Tikendra Dewangan (PW-11) has also stated and clarified that if semen is not ejaculated during intercourse with a woman or she has used protection or the duration has passed or a woman has bathed or has urinated or defecated or her genitals have been cleaned, then in that case the FSL test has no significance. From the statements of Dr. Tikendra Dewangan (PW-5) and Dr. Premlata Sahu (PW-11), it is amply clear that a deep wound was found in the vagina of the deceased and a clear opinion has been given in this regard that there are signs of forced vaginal penetration, the fact of sexual assault cannot be denied. 22. The term ‘rape’ has been defined under Section 375 of the IPC, which reads as under: “375. Rape - A man is said to commit "rape" if he- (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or 10 (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions: First. Against her will. Secondly. Without her consent. Thirdly. With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly. With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly. With or without her consent, when she is under eighteen years of age. Seventhly. When she is unable to communicate consent.” 23. The short postmortem report (Exhibit P/4) and the detailed postmortem report (Exhibit P/3) clearly states that the deceased was subjected to forceful penetration in vagina and as such, the prosecution has been successful in proving that the crime of rape has been committed by forcefully establishing physical relations with the deceased before her death, against the will and without her consent. 11 24. The case is based on last seen theory. Father of the deceased (PW-1) had deposed that on the date of incident, her daughter had left the house stating that she was going to the Bank for some work. On the next day, he came to know that her daughter was lying unconscious near a mobile tower who was taken to the Apollo Hospital, Bacheli. Similar deposition has been made by the mother (PW-2). 25. Raju Kunjam (PW-3) the cousin of the deceased. On the date of incident, while he was going for his duty alongwith his friend Sukhram Kunjam at about 8:40 in the night, they saw the appellant-Budhru standing near his motorcycle and the appellant-Biju laying on the ground besides the road and the deceased was sitting on the motorcycle with her head down. They asked them to go home and thereafter they went for their duty. Similar deposition has been made by Sukhram Kunjam (PW-4) who happens to be the uncle (Chacha) of the deceased. 26. It is evident from the deposition of the parents of the deceased that when she left the house in the morning stating that she had some work at Bank, she was hail and hearty and lastly, she was seen with the appellants and thereafter, she was found lying unconscious with injuries on her head. 27. As per the memorandum statement (Exhibit P/9) and (Exhibit P/10), all the three i.e. the appellants and the deceased were known to each other. They all after consuming liquor were roaming here and there on a motor cycle and the appellant-Budhru wanted to make physical relationship with the deceased. Since they all were in a drunken condition, he tried to pick the deceased on his own because of which she fell and the head of the deceased got injured but still he took the deceased near mobile tower where he committed rape upon her. The appellant-Biju Ram Oyami was 12 guarding the area. The motor cycle used in the offence was also recovered at the instance of the appellant-Budharu Oyami. 28. The appellants have also not given any suggestion or explanation as to why the witnesses (PW-3) and (PW-4) would falsely be deposing against them or the police would have falsely implicated them in the offence in question. The appellants have not even tried to explain as to where and with whom the deceased went after they were seen by PW-3 and PW-4 and as such, the burden lies upon the appellants only to explain as to how the deceased was found in an injured condition on the next day in the morning when they were all seen together in the night. Reliance