Nafr High Court
Case Details
1 CRA No. 1647 of 2019 ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.01.06 13:27:13 +0530 2025:CGHC:14-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1647 of 2019 (Arising out of judgment dated 13.09.2019 passed in nd Additional Sessions Sessions Trial No.19/2019 by the 2 Judge, Korba, District Korba, Chhattisgarh.) Suresh Khunte S/o Shyamlal Khunte, aged about 32 years, R/o Near Shiv Mandir, Pokhari Para, Chouki Manikpur, District - Korba, Chhattisgarh. versus ... Appellant State of Chhattisgarh through Police Station - Kotwali Korba, District- Korba, Chhattisgarh. ... Respondent For Appellant
Legal Reasoning
maximum sentence to the appellant. Having considered the facts and circumstances of the case and evidence available on record and also considering the submissions raised on behalf of learned counsel for the parties on question of sentence, it would be appropriate to modify the sentence awarded to the appellant and accordingly, we award minimum sentence i.e. rigorous imprisonment for 10 years to the appellant instead of imprisonment of life for offence under Section 376 of the IPC. 14. Concludingly, the appellant is convicted for offence under Section 376 of the IPC and sentenced to under rigorous imprisonment for 10 years, however, the fine amount imposed by the learned trial Court shall remain intact. So far as the conviction for offence under Section 366 of the IPC, the prosecution has failed to bring home the offence beyond reasonable doubt against the appellant accordingly, the conviction as well as sentence for offence under Section 366 of the IPC is set aside. 15. This criminal appeal is allowed to the extent indicated herein above. 10 CRA No. 1647 of 2019 16. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and the copy of this judgment be sent to the concerned Superintendent of Jail where he is lodged and suffering jail sentence, forthwith for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) Judge Judge (Sachin Singh Rajput) Ankit
Arguments
:- Mr. Vikas A. Shrivastava, Advocate. For Respondent-State :- Mr. Afroz Khan, Panel Lawyer. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Sachin Singh Rajput Hon'ble Shri Justice On Board Judgment (02.01.2025) Sanjay K. Agrawal, J 1. Invoking criminal appellate jurisdiction of this Court, the present criminal appeal under Section 374(2) of CrPC has been filed by the appellant calling in question the legality, 2 CRA No. 1647 of 2019 validity and correctness of the judgment of conviction and order of sentence dated 13.09.2019 passed by the 2nd Additional Sessions Judge, Korba District Korba, Chhattisgarh in Sessions Trial No.19/2019 whereby the appellant herein has been convicted and sentenced as under:- Conviction Sentence Under Section 376 of the IPC Under Section 366 of the IPC Sentenced to undergo imprisonment for life and pay fine of 500/-; in default of payment of fine amount, additional rigorous imprisonment for 2 months ₹ Sentenced to undergo rigorous imprisonment for 10 years and pay fine of 500/-; in default of payment of fine amount, additional rigorous imprisonment for 2 months. ₹ All the sentences were directed to run concurrently. 2. The case of the prosecution, in a nutshell, is that on 27.10.2018, at about 8:00 am, at near Gas Godam, Chouki Manikpur, District Korba, Chhattisgarh, the appellant abducted major victim (PW-1), aged about 18 years, and took her into the bushes near gas godam and committed sexual assault against her wishes and thereby committed the aforesaid offences. 3 CRA No. 1647 of 2019 3. It is further case of the prosecution that on the date of offence, when complainant mother of the victim (PW-2) after completing her household work, searching her daughter for giving medicine, she could not find her, then her neighbour Bittu Nayak (not examined) informed her that the appellant came with the victim to the school where teachers and students confined him. Thereafter, mother of the victim (PW-2), reached to the school and went to the police station and reported the matter against the appellant, pursuant to which FIR (Dehati Nalsi) was registered vide Ex.P/1. Spot map was prepared vide Ex.P/17. Victim (PW-1) was medically examined by Dr. Veena Agrawal (PW-6) who prepared the medical report of the victim vide Ex.P/7. As per medical report of the victim (Ex.P/7) five external injuries were found over the body of the victim and swelling was also found on the head of the victim; hymen membrane was found ruptured, blood was also found on the private part and the victim also complaining pain while examination on the private part. Signs of recent sexual intercourse has been found by Dr. Veena Agrawal (PW-6), who medically examined the victim, and same has been mentioned in the medical report of the victim (Ex.P/7). Slides of the victim were prepared and sent for chemical 4 CRA No. 1647 of 2019 analysis to FSL. As per FSL report (not exhibited) dated 21.01.2019 on underwear of the victim (article A), slide of the victim (article B), underwear of the appellant (article C) and slide of the appellant (article D2) stains of semen and human sperm were found. 4. After due investigation, appellant was charge-sheeted for the aforesaid offences and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence. 5. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 11 witnesses; exhibited 19 documents; FSL report and articles A1 to A4 whereas, the appellant in defence has neither examined any witness nor exhibited any document. Statement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record, pleaded innocence and false implication. 6. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the 5 CRA No. 1647 of 2019 appellant for the offences as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. 7. Mr. Vikas A. Shrivastava, learned counsel for the appellant, submits that the trial Court has absolutely unjustified in convicting the appellant for the aforesaid offences as the victim (PW-1) in her statement before the Court at paragraph No.7 has clearly stated that she had herself sat on the motorcycle of the appellant, therefore, she was absolutely a consenting party and, as such, offence under Sections 376 and 366 of the IPC is not made out. In alternative, he also submits that on the basis of the provisions contained under Section 376 of the IPC, the appellant may be awarded minimum sentence i.e. 10 years’ rigorous imprisonment as there is no extraordinary circumstance/special reason assigned by the trial Court for imposing life imprisonment to the appellant. Thus, the present appeal deserves to be allowed in full or part. 8. On the other hand, Mr. Afroz Khan, learned State counsel, supports the impugned judgment and submits that prosecution has been able to prove the offence beyond 6 CRA No. 1647 of 2019 reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence, therefore, the instant appeal deserves to be dismissed. 9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection. 10. The appellant has been convicted merely on the basis of statement of the victim (PW-1) followed by the medical examination (Ex.P/7) conducted by Dr. Veena Agrawal (PW- 6) and the forensic evidence. In the medical report (Ex.P/7) six external injuries were found over the body of the victim i.e. lacerated wounds on the right and left elbow; lacerated wound on the wrist of right hand and lacerated wounds were also found over the right and left knee of the victim and also swelling was found on the head of the victim except that hymen was found ruptured, blood was also found on the private part of the victim and the victim was complaining pain on her private part at the time of examination. Dr. Veena Agrawal (PW-6) has given positive opinion with regard to recent sexual intercourse as she has found the signs of recent sexual intercourse while examining the victim. Furthermore, in the FSL report (not 7 CRA No. 1647 of 2019 exhibited) dated 21.01.2019 on the underwear of the victim (article A), slides of the victim (article B), underwear of the appellant (article C) and slide of the appellant (article D2) stains of semen and human sperm were found. 11. A careful perusal of the statement of the victim (PW-1) aged about 18 years, would show that as per cross- examination she sat on the motorcycle of the appellant voluntarily, but except that no evidence available on record that victim was the consenting party though she was major on the date of offence. On the other hand, statement of the victim as well as the medical evidence and the forensic evidence, support that she (victim) was subjected to sexual intercourse against her wishes and against her consent as the same is apparent from the medical report in which six external injuries were found over the body of the victim i.e. lacerated wounds on the right and left elbow; wrist of right hand and lacerated wounds were also found over the right and left knee of the victim and swelling was found on the head of the victim except that hymen was found ruptured and other symptoms were also found and the same is also corroborated by the FSL report dated 21.01.2019 in which on the underwear of the victim as well as underwear of the appellant and on the slide of the victim as well as on the 8 CRA No. 1647 of 2019 slide of the appellant stains of semen and human sperm were found, as such, conviction of the appellant for offence under Section 376 of the IPC is well merited and deserves to be allowed. However, as per paragraph No.7 of the statement of the victim before the trial Court in which she has stated that she sat on the motorcycle of the appellant on her own and the appellant had not abducted her, therefore, the conviction of the appellant for offence under Section 366 of the IPC deserves to be set aside. 12. Now, it is the submission on behalf of the appellant that the appellant may be awarded minimum sentence i.e. 10 years’ rigorous imprisonment for offence under Section 376 of the IPC as on the date of offence i.e. 27.10.2018, the minimum sentence for offence under Section 376 of the IPC was 10 years’ rigorous imprisonment as Section 376 of the IPC was amended and is applicable w.e.f. 21.04.2018. 13. A careful perusal of the order of the trial Court would show that the appellant has been convicted for offence under Section 376 of the IPC and awarded maximum sentence i.e. imprisonment for life instead of minimum sentence though no extraordinary/special circumstance has been assigned by the trial Court for imposing 9 CRA No. 1647 of 2019