Shivaram and anr. Vs. State of Chhhattisgarh - Court Judgment

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- - 7. learned counsel appearing for the appellants submit that the judgment of the trial-court is not only perverse, bad and contrary to law but also is manifestly wrong, leading to a grave miscarriage of justice. the trial court failed to appreciate and scrutinize judicially the facts and circumstances of the case. learned counsel further submit that the prosecutrix stated in para 20 of her deposition that she had never gone to the house of bramhdeo (pw/8) which creates a great suspicion that she tried to hide the real fact, therefore, her testimony appears to be, unreliable and untrustworthy. thus, on anxious evaluation of her deposition, it is evident that the defence was unable to elicit any substantial contradictions, omissions or improvements by which her testimony can be held unreliable or untrustworthy. parrot-like statements are disfavoured by the courts. it can be accepted without corroboration, if the court, keeping in mind that it is dealing with the evidence of a person who is interested in the outcome of the charge leveled by her, is satisfied that it can act on her evidence. 24. taking into consideration over all evidence available on record and applying the well settled principles of law laid down by hon'ble the supreme court in the aforementioned judgments, i am of the considered opinion that the judgment of the trial court does not suffer from any illegality, infirmity, or irregularity warranting interference in appeal.r.n. chandrakar, j.1. the appellants have preferred this appeal against the judgment of conviction and order of sentence dated 14-9-2004 passed by the special judge, ambikapur, district sarguja in special case no. 80/2002, whereby the accused/appellants have been convicted under section 376 (2)(g) of the ipc and sentenced to undergo r. i. for ten years and to pay fine of rs. 500/- each, in default of payment of fine to undergo further s. i. for three months.2. the prosecution case as set out in the first information report (fir) is that the prosecutrix namely kalawati was residing along with her mother in village kotagahana in the house of one jugeshwar choubey. on 3-9-2002 she went to the house of bramhdeo alias lilu yadav (pw/8) to obtain iron press for ironing her clothes. at the same time, at about 2.00 p. m., the appellants along with another person came in a marshal jeep and seeing her, stopped the jeep in front of the house of bramhdeo alias lilu yadav (pw/ 8). the accused/appellants forcibly dragged the prosecutrix in the jeep and she cried for help. hearing her outcry when bramhdeo alias lilu yadav (pw/8) came out of his house, the accused/appellants started the jeep and took the prosecutrix to behrakhand forest where appellant no. 1 shivaram forcibly got her down from the jeep and committed rape on her. the prosecutrix made outcry and started weeping, hearing which budhan korwa, lilu alias bhramhdeo and her mother namely urmila came there. after the incident the appellants fled away from the spot in the said jeep. on the same day i.e., on 3-9-2002 at 4.30 p. m. the prosecutrix lodged the fir (ex. p/4) in police station, rajpur, where the offence was registered against the appellants and the matter was investigated.3. during investigation; the prosecutrix and the appellant no. 1 shivaram were sent for medical examination vide ex. p/8 and ex. p/3 respectively to government hospitals, rajpur and ambikapur where doctors examined both of them and gave their reports vide ex. p/4 & p/2. investigating officer seized the clothes of prosecutrix vide ex. p/ 3, broken bangles, one empty sachet of pan parag etc., from the spot vide ex. p/10, the offending vehicle from noharsai vide ex. p/ 1 and prepared the spot map vide ex. p/11. the clothes of the prosecutrix were sent to the doctor for medical examination vide ex. p/12.4. after completing the investigation, charge-sheet was filed in the competent court who in turn, committed the case to the trial court. learned trial court framed the charge under section 376 (2) (g) of the ipc read with section 3(2)(5) of the scheduled castes and scheduled tribes (prevention of atrocities) act, 1989 against the appellants. the appellants abjured the guilt.5. the prosecution, in order to establish the charge against the appellants, examined nine witnesses. thereafter, the statements of the accused /appellants were recorded under section 313 of the cr. p. c. in which they denied the circumstances appearing against them and pleaded their innocence and false implication. the appellants examined, sukhram (dw/1) and budhanram (dw/2) in their defence.6. after hearing learned counsel for the parties and on evaluation of the evidence available on record, the trial court convicted and sentenced the appellants as noted above.7. learned counsel appearing for the appellants submit that the judgment of the trial-court is not only perverse, bad and contrary to law but also is manifestly wrong, leading to a grave miscarriage of justice. the trial court failed to appreciate and scrutinize judicially the facts and circumstances of the case. in view of the evidence and material available on record* there is no iota of evidence against appellant no. 2 to connect with this so-called gang rape. as a matter of fact, this case does not fall within the ambit of section 376(2)(g) of the ipc. the role of the appellant no. 2 has not been disclosed in the, case. in this connection, the trial court has wrongly held that the appellant no. 2 was, playing an active role in the commitment of rape by appellant no. 1 with the prosecutrix. the trial court has arbitrarily and blindly believed the uncorroborated statement of pw-8 lilu alias bramhdeo whose conduct is doubtful. learned counsel further submit that the prosecutrix stated in para 20 of her deposition that she had never gone to the house of bramhdeo (pw/8) which creates a great suspicion that she tried to hide the real fact, therefore, her testimony appears to be, unreliable and untrustworthy. learned counsel lastly submit that considering the entire facts, the judgment of conviction and order of sentence be set aside and the appellants be acquitted of the charge. learned counsel in support of their contentions, placed reliance in pardeep kumar v. union administration, chandigarh : 2006 stpl (le) 37389 sc : 2006 cri lj 3894.8. per contra, learned counsel appearing for the respondent/state in support of the impugned judgment of the lower court submits that the accused/appellants were rightly convicted under section 376(2)(g) of the ipc as it was, amply proved by the prosecution that both the appellants acted in concert to commit rape on the prosecutrix and in furtherance of the common intention, rape was committed by appellant no. 1.9. i have heard learned counsel for the parties, perused the record of the trial court and also the impugned judgment.10. in order to appreciate the arguments advanced by learned counsel for the parties, it would be appropriate to extract the relevant provision of section 376 of the ipc which reads as under:376. punishment for rape:(2) whoever,:(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:provided....explanation 1.- where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section.11. in view of the aforesaid provision and on going through the record of the trial court, the evidence of the prosecutrix kalawati (pw/5) and brahmdeo alias lilu yadav (pw/ 8) are substantial to analyze the factual matrix of the case with regard to the conduct and role played by the appellants in commission of the offence.12. pw/5 kalawati, prosecutrix stated in her deposition that on the date of incident when she went to, the house of brahmdeo alias lilu yadav (pw/8) to obtain iron press for ironing her clothes, the appellants accompanied by another person came there in a marshal jeep and forcibly dragged her in the jeep which was driven by the appellant no. 2. she was taken to berhakhand forest where appellant no. 1 dragged her from the jeep and throwing her on the ground, committed rape on her. she further deposed that despite her resistance and outcry, the appellant no. 1 did not set her free. the appellant no. 1 threatened the prosecutrix to kill by showing sword if she did not yield to his wish. she also stated that at the time of committing the offence by appellant no. 1, the appellant no. 2 left the place of occurrence with the offending vehicle to his house where her mother asked him about her whereabouts to which the appellant no. 2 denied. after the incident, her mother, brahmdeo (pw/8) and other persons came to the spot. the appellant no. 2 also came there again with the offending vehicle in which he took away the appellant no. 1 from the spot. thereafter, she lodged the report of the incident vide ex/p/4 against the appellants in police station rajpur. thereafter, she was sent to the government hospital, rajpur, for medical examination. her clothes were seized vide ex. p/ 3, her broken bangles were seized from the spot vide ex. p/10 and spot map was prepared vide ex. p/11 by the police.13. the prosecutrix was cross examined at length in which she denied almost all the suggestions given by the defence and remained consistent to her statement. she specifically denied the suggestion that she herself accompanied the appellants in the jeep and did not make any outcry. she also denied the suggestion that she herself alighted from the jeep and stated that she was dragged from the jeep by appellant no, 1. she specifically admitted that when she was made to sit in the jeep, she made outcry and hearing the same bramhdeo alias lilu yadav came out from the house. thus, on anxious evaluation of her deposition, it is evident that the defence was unable to elicit any substantial contradictions, omissions or improvements by which her testimony can be held unreliable or untrustworthy.14. the testimony of the prosecutrix is also corroborated by brahmdeo (pw/8) who categorically stated in his deposition that on the date of incident, the prosecutrix came to his house for obtaining iron press, at that time, he was taking his lunch. hearing the outcry of the prosecutrix, when he came out from the house, he saw that the appellants were forcibly taking the prosecutrix in a marshal jeep. thereafter, he went to the mother of the prosecutrix and narrated the fact. after some time, the jeep was found standing near the house of appellant no. 2. the mother of the prosecutrix went there and the appellants took the jeep towards forest. the appellant no. 2 blew horn and the appellant no. 1 rushed to the jeep. thereafter the prosecutrix came out from the forest by weeping and narrated the incident to him and her mother in presence of some other persons of the village. thereafter, the report of the incident was lodged in police station, rajpur. he admitted the spot map (ex. p/11), seizure of broken bangles and empty sachet of pan-parag from the spot vide ex.p/10 as also the clothes of the prosecutrix vide ex. p/3. in his cross examination this witness remained consistent and unrebutted to the fact that when he came out from the house hearing the outcry of the prosecutrix, he saw that the appellants were forcibly taking away the prosecutrix in a marshal jeep. he categorically stated that he gave this information to the mother of the prosecutrix and saw the prosecutrix at the place of incident where she was weeping. he denied the suggestion that the incident was not narrated by the prosecutrix in his presence. thus, the version of this witness inspires confidence and finds corroboration with the testimony of the prosecutrix despite there being some discrepancies not amounting to material contradiction.15. hon'ble the supreme court in state of h. p. v. lekh raj : (2000) 1 scc 247 : 2000 cri lj 44 on the aspect of discrepancy observed as under:discrepancy has to be distinguished from contradiction. whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. the normal course of the human conduct would be that white narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. parrot-like statements are disfavoured by the courts. in order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement.16. learned counsel for the appellants pointing towards the statement made by the prosecutrix in para 20 of her deposition tried to discredit the testimony of the prosecutrix and submitted that she never went to the house of brahmdeo (pw/8). the extract of para 20 reads as (vernacular matter omitted.)on scrutiny, the meaning of para 20 is found that the prosecutrix never visited the house of brahmdeo (pw/8) before the incident, therefore, on the date of incident also when the marshal jeep came in front of the house of brahmdeo,, she did not enter his house. the statement of the prosecutrix is to be viewed in the context of the statement of brahmdeo who categorically stated in para 27 to 29 of his deposition that it was for the first time when the prosecutrix came to his house for obtaining iron press on the date of incident and was standing out of the house. thus, there is no force in the contention of learned counsel for the appellants and it appears that the gist of the deposition of the prosecutrix has wrongly been interpreted only with a view to discredit the testimony of the prosecutrix. the interpretation/translation of any sentence or paragraph should be based on its full context. it would not be apposite to pick up and interpret only half of the sentence which goes in favour of the appellants, leaving the other portion untouched.17. it is evident that the forcible intercourse on the prosecutrix is also established by the evidence, of doctor smt. kiran bhajgawali (pw/4) who examined the prosecutrix on 4-9-2002., she found multiple abrasion marks on hips and waists of the prosecutrix as also a small tear at 6' o clock position in her hymen,. on examination by finger, the prosecutrix felt pain and tenderness. the doctor gave her report vide ex. p/4 and opined that the recent intercourse was performed on her and the injuries were caused within 12 to 24 hours by hard and blunt object. in her cross examination, the doctor smt. kiran bhagwali denied the suggestion that the hymen of the prosecutrix was old torn and she was accustomed to sexual intercourse. further, appellant no. 1 was examined by doctor b. s. sangar (pw/2) vide ex. p/2 who found him to be potent. thus, it cannot be ruled out that the forcible intercourse was not performed by the appellant no. 1 with the prosecutrix. the clothes of the prosecutrix were advised to send for chemical analysis by the doctor smt. kiran bhajgawali (pw/4) but the fsl report is not available on record. it is made clear that in view of the consistent and credible evidence of the prosecutrix which is corroborated by brahmdeo (pw/8), it need not be further corroborated by any medical evidence. apart from this, injuries were found on the body of the prosecutrix which goes to show the only fact that she was forcibly raped against her will.18. hon'ble the supreme court in the matter of sri narayan saha and anr. v. state of tripura reported in : (2004) 7 scc 775 : air 2005 sc 1452 on the aspect of corroboration observed as under:the prosecutrix of the sex offence cannot be put on a par with accomplice. she is in fact, a victim of the crime and her evidence must receive the same weight as is attached to an injured witness. it can be accepted without corroboration, if the court, keeping in mind that it is dealing with the evidence of a person who is interested in the outcome of the charge leveled by her, is satisfied that it can act on her evidence.19. further, hon'ble the supreme court in the matter of state of m. p. v. dayal sahu reported in : 2005 air scw 4839 : 2005 cri lj 4375, observed as under:once the statement of prosecutrix inspires confidence and accepted by the courts as such, conviction can be passed only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the courts for corroboration of her statement. corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law, but a guidance of prudence under the given facts and circumstances.20. so far as the involvement of the appellant no. 2 in crime in question is concerned, it is clear from the evidence of the prosecutrix (pw/5) and brahmdeo (pw/8) that he was present with the appellant no. 1 right from beginning to end. it is evident that the offending vehicle was driven by appellant no. 2 in which the prosecutrix was boarded by appellant no. 1 and taken away to the forest where the prosecutrix was raped by appellant no. 1. it is also evident that during commission of offence by appellant no. 1, the jeep was brought by appellant no. 2 to his house where he met the mother of the prosecutrix and stated nothing about whereabouts of her daughter. thereafter, he again went to the place of occurrence with the offending vehicle and, took away the appellant no. 1 after commission of the offence. thus, the conduct of the appellant no. 2 goes to show that he had the common intention to participate in the crime and acted in furtherance of that common intention just to facilitate the appellant no. 1 in commission of the crime in question with the prosecutrix.21. hon'ble the supreme court in ashok kumar v. state of haryana : (2003) 2 scc 143 : 2003 cri lj 4932 on the aspect of common intention observed as under:in order to establish an offence under section 376(2)(g) ipc, read with explanation i thereto, the prosecution must adduce evidence to indicate that more than one accused had acted in concert and in such an event, if rape had been committed by even one, all the accused will be guilty irrespective of the fact that she had been raped by one or more of them and it is not necessary for the prosecution to adduce evidence of a completed act of rape by each one of the accused. in other words, this provision embodies a principle of joint liability and the essence of that liability is the existence of common intention; that common intention presupposes prior concert which may be deter-mined from the conduct of offenders revealed during the course of action and it could arise and be formed suddenly, but, there must be meeting of minds. it is not enough to have the same intention independently of each of the offenders. in such cases, there must be criminal sharing marking out a certain measure of jointness in the commission of offence.22. further, hon'ble the supreme court in priya patel v. state of m.p. : (2006) 6 scc 263 : 2006 cri lj 3627 observed as under:by operation of the deeming provision, a person who has not actually committed rape is deemed to have committed rape even if only one of the group in furtherance of the common intention has committed rape. 'common intention' is dealt with in section 34 ipc and provides that when a criminal act is done by several person in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. 'common intention' denotes action in concert and necessarily postulates a pre-arranged plan, a prior meeting of minds and an element of participation in action. the acts may be different and vary in character, but must be actuated by the same common intention, which is different from the same intention or similar intention. the sine qua non for bringing in application of section 34 ipc is that the act must be done in furtherance of the common intention to do a criminal act. the expression 'in furtherance of their common intention' as appearing in the explanation to section 376(2) relates to the intention to commit rape.23. it is pertinent to mention here that the case law cited by the counsel for the appellants is not applicable to the facts of the present case as the facts are distinguishable and the same was a case of clear exoneration of the appellant and the prosecutrix had changed her version before the court from time to time but in the present case the prosecutrix remained consistent to her version which is duly corroborated by brahmdeo (pw/8) though not required.24. taking into consideration over all evidence available on record and applying the well settled principles of law laid down by hon'ble the supreme court in the aforementioned judgments, i am of the considered opinion that the judgment of the trial court does not suffer from any illegality, infirmity, or irregularity warranting interference in appeal. the court below has rightly placed reliance on the statement of the witnesses, specifically on the statement of prosecutrix which is duly corroborated by brahmdeo (pw/8) while convicting and sentencing the accused /appellants as mentioned above.25. accordingly, the appeal being devoid of merit deserves to be dismissed and is accordingly dismissed.