HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No.713 of 2001

Judgment Reserved on : 13.4.2022

Judgment Delivered on : 11.5.2022

Laxmi Bai, W/o Kartik Ram Suryavanshi, aged about 21 years, R/o Kumharpara, Jarhabhatha, Bilaspur, Chhattisgarh

---- Appellant

versus

State of Chhattisgarh through Police Station Civil Lines, Bilaspur, Chhattisgarh

--- Respondent

and

Criminal Appeal No.771 of 2001

• 1. Aabhas Kumar alias Tappu, son of B. Damodar Mudliyar, aged 18 years, resident of Dua Chawl, Jarhabhata, Bilaspur, Tahsil and District Bilaspur, Chhattisgarh
• 2. Chandan Singh, son of Dayaram Lodhi, aged 32 years, resident of Pichhor Bus Stand, P.S. Pichhor, District Shivpuri, Madhya Pradesh

---- Appellants

versus

State of Chhattisgarh through P.S. Civil Lines, Bilaspur, Chhattisgarh

--- Respondent

-------------------------------------------------------------------------------------------------------
For Appellant Laxmi Bai	:	Ms. Shailja Shukla, Advocate
For Appellants Aabhas Kumar and<br>Chandan Singh	:	Shri Shrawan Kumar Chandel,<br>Advocate
For Respondent/State<br>-------------------------------------------------------------------------------------------------------	:	Ms. Madhunisha Singh, Deputy<br>Advocate General

Hon'ble Shri Justice Arvind Singh Chandel

C.A.V. JUDGMENT

1. Since both the appeals arise out of a common judgment, they are heard and decided together.

2. Both the appeals have been preferred against the judgment dated 31.7.2001 passed by 1st Additional Sessions Judge, Bilaspur in Sessions Trial No.111 of 2000, whereby the Appellants have been convicted and sentenced as follows:

Conviction		Sentence
All the 3 Appellants<br>(Laxmi Bai, Aabhas Kumar alias Tappu and Chandan Singh)
Under Section 363 of the<br>Indian Penal Code		Rigorous Imprisonment for 4<br>years and fine of Rs.1,000 with<br>default stipulation
Under Section 366 of the<br>Indian Penal Code		Rigorous Imprisonment for 5<br>years and fine of Rs.1,000 with<br>default stipulation
Under Section 366A of the<br>Indian Penal Code		Rigorous Imprisonment for 5<br>years and fine of Rs.1,000 with<br>default stipulation
Under Section 372 of the<br>Indian Penal Code		Rigorous Imprisonment for 5<br>years and fine of Rs.1,000 with<br>default stipulation
Additional Conviction of Appellant Chandan Singh
Under Section 193(2) of the<br>Indian Penal Code		Rigorous Imprisonment for 1<br>year and fine of Rs.500 with<br>default stipulation
Under Section 199 of the<br>Indian Penal Code		Rigorous Imprisonment for 2<br>years and fine of Rs.500 with<br>default stipulation

3. Prosecution case, in short, is that at the time of incident, the victim girl (PW10) was aged about 14-15 years. Her date of birth is 11.11.1984 and she was studying in 6th standard. On 13.10.1999 at about 10 a.m., the victim went to her school, but she did not return home till 6 p.m. Her mother Yasmin Begum (PW2) lodged a missing report of the victim. Later on, the victim was recovered from the possession of co-accused Shriram Singh (died) on 24.11.1999. Her statement was recorded. Further case of the prosecution is that the victim was taken to Khongsara by a train by

Appellant Laxmi Bai by alluring her. In the said train, Appellant Aabhas Kumar also met them. He also accompanied them to Khongsara. Thereafter, all of them went to Pendra, thereafter to Delhi and thereafter they went to Jhansi. At Jhansi, Appellants Aabhas Kumar and Laxmi Bai took the victim to the house of coaccused Santosh (absconded). Allegedly, Appellants Laxmi Bai and Aabhas Kumar sold the victim to co-accused Santosh. The victim stayed at the house of Santosh for about 3-4 days. Thereafter, co-accused Santosh and Appellants Laxmi Bai and Aabhas Kumar took the victim to the house of Appellant Chandan Singh, who was an Advocate by profession. It is further alleged that Appellant Chandan Singh prepared a forged affidavit of the victim after changing her name to Rani Patel. Thereafter, Appellants Chandan Singh, Laxmi Bai and Aabhas Kumar sold the victim to co-accused Shriram Singh. It is further alleged that Santosh, Shriram Singh and Aabhas Kumar committed sexual intercourse with the victim frequently on various occasions. On completion of the investigation, a charge-sheet was filed. The Trial Court framed charges against all the Appellants under Sections 363, 366, 366A and 372 of the Indian Penal Code. The Trial Court also framed charge under Section 376(2)(g) of the Indian Penal Code against Appellant Aabhas Kumar. The Trial Court also framed charges under Sections 193(2) and 199 of the Indian Penal Code against Appellant Chandan Singh. During pendency of the trial, co-accused Shriram Singh died and co-accused Santosh absconded.

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• 4. To rope in the accused persons, the prosecution examined as many as 27 witnesses. In examination under Section 313 Cr.P.C., the accused persons denied the guilt and pleaded innocence. 1 defence witness, namely, Basant Kumar Singh is examined on behalf of Appellant Chandan Singh.
• 5. On completion of the trial, vide the impugned judgment, the Trial Court convicted and sentenced the Appellants as mentioned in 2nd paragraph of this judgment. Hence, the appeals.
• 6. Learned Counsel appearing for the respective Appellants jointly submitted that the Trial Court has wrongly convicted the Appellants without there being any clinching and sufficient evidence available against them on record. There is no clinching evidence on record on the basis of which it could be said that the victim was below 18 years of age. From the conduct of the victim, it appears that she was a consenting party and she herself left her house at her own will and visited various places along with Appellants Laxmi Bai and Aabhas Kumar. It was further argued that there are material contradictions and omissions in the statements of the witnesses. The victim and her mother have developed their statements. Therefore, their statements are not reliable. Learned Counsel appearing for Appellant Chandan Singh additionally argued that without there being any evidence available on record against Appellant Chandan Singh, he has been convicted for the offences under Sections 363, 366, 366A of the Indian Penal Code. With regard to the other offences under Sections 372, 193(2) and 199 of the Indian Penal Code, there is no clinching evidence available on

record against Appellant Chandan Singh. Thus, his conviction for the offences under Sections 372, 193(2) and 199 of the Indian Penal Code is also not sustainable.

• 7. Learned Counsel appearing for the Respondent/State opposed the arguments advanced on behalf of the Appellants.
• 8. I have heard the arguments raised on behalf of the parties and perused the record of the Trial Court minutely.
• 9. As regards age of the victim, according to the case of prosecution, at the time of incident, she was aged about 14-15 years. Yasmin Begum (PW2), mother of the victim categorically deposed that at the time of incident, the victim was studying in 6th standard and her date of birth is 11.11.1984. In paragraph 17 of her crossexamination, she further deposed that her marriage was solemnised in the year 1983 and after 1 year of her marriage, the victim was born. She further deposed that at the time of admission in the school also, the victim was aged about 6 years. The above statement of this witness is not duly rebutted during her crossexamination. According to the entries of Dakhil-Kharij Panji (Ex.P21), the date of birth of the victim is 11.11.1984. Dr. Smt. V. Jain (PW16), who examined the victim, also deposed that at the time of examination, age of the victim was between 14 and 16 years. Looking to the entire evidence adduced by the prosecution with regard to the age of the victim, it is well established that at the time of incident, the victim was below 16 years of age. Therefore, the finding of the Trial Court in this regard is in accordance with the

evidence available on record. I do not find any perversity in the finding of the Trial Court in this regard.

10. With regard to the incident, the victim (PW10), in her Court statement, deposed that before 4-5 days of the incident, Appellant Laxmi Bai met her and told that they will go to Khongsara for roaming and will return in the evening itself. On her telling, she took her some clothes, went out of her house and went way along with Appellant Laxmi Bai. According to this witness, at that time, she told Appellant Laxmi Bai that she had not disclosed about her visiting to Khongsara to her mother, but Appellant Laxmi Bai told her that she had already told about this to her mother. According to this witness, both of them went to Khongsara by a train. On the way, inside the said train, Appellant Aabhas Kumar met them. Appellant Laxmi Bai introduced him as her brother-in-law. All of them went to Khongsara. There, Appellant Aabhas Kumar took them to the house of his brother Sanju. This witness further deposed that thereafter on the next day, on telling by the father of Appellant Laxmi Bai, Appellant Laxmi Bai and this witness caught a train for going to Bilaspur and in that train Appellant Aabhas Kumar again met them. All of them stepped down at Belgehna Railway Station. From there, they caught another train and went to Pendra. From there, they went to Katni by another train and from there they went to Delhi by another train. They halted at Delhi for 1 day and thereafter from there they caught a train for Bilaspur. When the train reached Jhansi, there co-accused Santosh came to them. All of them went to the house of Santosh at Jhansi. All stayed at the

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house of Santosh for about 3-4 days. This witness further deposed that thereafter she was left at the house of Santosh and Santosh, Laxmi Bai and Aabhas Kumar went out. Then mother of Santosh told this witness that Laxmi Bai had sold her to Santosh and left her there. She further deposed that later on Santosh returned. Thereafter, Santosh took her to the house of Appellant Chandan Singh (Advocate). Santosh made her sit on a scooter and thereafter she was taken to a village. There, in an agricultural field, Santosh committed forcible sexual intercourse with her. This witness further deposed that thereafter Chandan Singh and Santosh took her to the house of co-accused Shriram Singh on a scooter. There, Chandan Singh sold her to Shriram Singh for a consideration of Rs.15,000. This witness further deposed that thereafter Chandan Singh again took her to somewhere on a scooter and there he told her that she will now tell her name as Rani Patel and obtained her signatures on an affidavit (Ex.P8). She further deposed that thereafter Shriram Singh took her to his house and there he committed sexual intercourse with her frequently for about 20-21 days. Thereafter, police came and recovered her from the possession of Shriram Singh. In paragraph 28 of her crossexamination, this witness admitted that at the time of talks going on regarding her sale and marriage with Shriram Singh, Appellant Aabhas Kumar was not present there. In paragraph 49 of her cross-examination, this witness further deposed that Chandan Singh and Santosh were the persons who took her to the house of Shriram Singh and Chandan Singh had obtained her signatures on the affidavit (Ex.P8) in the name of Rani Patel.

• 11. Yasmin Begum (PW2), mother of the victim, deposed that on 13.10.1999 at about 5:30 p.m., when she reached her house, she found that the victim had not returned home. She came to know that Appellant Laxmi Bai had taken the victim away. 1 month thereafter, when she came to know that Appellant Laxmi Bai was at Village Khongsara at the house of her father, she went to her. Laxmi Bai told her that the victim had gone to Pendra along with Appellant Aabhas Kumar. This witness further deposed that thereafter when she visited Jhansi along with police officials, she found the victim there working in an agricultural field.
• 12. Ku. Shanti (PW5) deposed that on the date of incident, Laxmi Bai had come to her house and got 2 letters written by her, one in her own name and another in the name of the victim and on being asked she had told her that they were going somewhere. The above statement of this witness is not rebutted during her crossexamination.
• 13. Sanju Kumar Yadav (PW9), a resident of Khongsara deposed that in the evening, Aabhas Kumar, Laxmi Bai and the victim came to his house and stayed there in the night. At that time, on being asked, Aabhas Kumar told that both the females were daughters of his Bua. The above statement of this witness is not rebutted during his cross-examination.
• 14. Anil (PW25) deposed that in the year 1999, he was working as a Stamp Vendor. According to this witness, on 1.11.1999, Appellant Chandan Singh had purchased a stamp (Ex.P8) from him. Notary

Amritlal (PW24) also deposed that Appellant Chandan Singh had submitted an affidavit (Ex.P8) before him which was written by Appellant Chandan Singh and Chandan Singh had also identified the person who had taken oath as Rani Patel and he had also signed as identifier of Rani Patel. The above statements of these 2 witnesses are not rebutted during their cross-examination in any manner.

15. On a minute examination of the above evidence, it is clear that at the time of alleged incident, the victim (PW10) was aged about 14- 15 years. From her statement, it is also established that initially Appellant Laxmi Bai allured her and took her to Village Khongsara. It is also established that on the way, in the train, Appellant Aabhas Kumar also met them and accompanied them. Further, all of the 3 persons, i.e., Laxmi Bai, Aabhas Kumar and the victim went and visited various above-named places. The statement of the victim is duly corroborated by her mother Yasmin Begum (PW2). From the statement of Yasmin Begum (PW2), it is also established that initially Appellant Laxmi Bai had taken the victim away and had also left a letter and after 1 month when Yasmin Begum (PW2) met with Laxmi Bai at Village Khongsara then she told this witness that the victim was taken away by Appellant Aabhas Kumar. From the unrebutted statement of Ku. Shanti (PW5), it is also established that when Laxmi Bai had taken the victim away, at that time, Laxmi Bai had got 2 letters written by this witness (Ku. Shanti). Out of the said 2 letters, 1 was in the name of Laxmi Bai herself and the other letter was in the name of victim. From the statement of Sanju Kumar Yadav (PW9), it is also established that Laxmi Bai, Aabhas Kumar and the victim had come to his house at Village Khongsara and stayed there in the night. Though on some point, the victim developed her statement and there are some contradictions and omissions in her statement, only on the basis of that, her whole statement cannot be discarded. Looking to the above evidence available on record, it is well established that at the time of incident, the victim was below 16 years of age and knowing this fact, both Laxmi Bai and Aabhas Kumar had taken the victim away along with them by alluring her beyond her legal guardianship. From the statement of the victim, it is also established that both Laxmi Bai and Aabhas Kumar had taken the victim to the house of Santosh. There, the victim was exploited and raped by Santosh. As stated by the victim, first Appellant Laxmi Bai sold her to co-accused Santosh. The above statement of the victim is not duly rebutted during her cross-examination. The victim has already admitted that at the time of her selling, Appellant Aabhas Kumar was not present there. According to the statement of the victim, at 2nd stage, she was sold to co-accused Shriram Singh by Appellant Chandan Singh for a consideration of Rs.15,000. This statement of the victim is also not duly rebutted. From the statements of Stamp Vendor Anil (PW25) and Notary Amritlal (PW24), it is also established that the stamp on which affidavit (Ex.P8) was written and executed was purchased by Appellant Chandan Singh and Appellant Chandan Singh is the person who wrote the said affidavit (Ex.P8) in his handwriting and Appellant Chandan Singh himself is the person who identified the victim in the said affidavit as Rani Patel.

Appellant Chandan Singh was not previously acquainted with the victim, but, even thereafter he identified the victim as Rani Patel, i.e., a Hindu girl, who, in fact, was a Muslim girl and that too identified her as a major girl.

• 16. Looking to the entire evidence adduced by the prosecution, the Trial Court has rightly convicted Appellant Laxmi Bai for the offences under Sections 363, 366, 366A and 372 of the Indian Penal Code. Therefore, her conviction under Sections 363, 366, 366A and 372 of the Indian Penal Code is affirmed.
• 17. The Trial Court has also rightly convicted Appellant Aabhas Kumar for the offences under Sections 363, 366 and 366A of the Indian Penal Code. Therefore, his conviction under Sections 363, 366 and 366A of the Indian Penal Code is also affirmed. As observed above, at the time of selling of the victim to co-accused Santosh and thereafter to co-accused Shriram Singh, Appellant Aabhas Kumar was not present there. There is also no evidence available on record that Appellant Aabhas Kumar received any part of the sale consideration. Therefore, his conviction under Section 372 of the Indian Penal Code is not sustainable and is thus set aside.
• 18. With regard to Appellant Chandan Singh, there is sufficient evidence available on record to show that Appellant Chandan Singh was the person who sold the victim to co-accused Shriram Singh for the consideration of Rs.15,000. It is also well established that Appellant Chandan Singh prepared the false affidavit (Ex.P8) of the victim in the name of Rani Patel. Therefore, the Trial Court

has rightly convicted Appellant Chandan Singh for the offences under Sections 372, 193(2) and 199 of the Indian Penal Code. His conviction under Sections 372, 193(2) and 199 of the Indian Penal Code is also affirmed. With regard to other offences of Appellant Chandan Singh under Sections 363, 366 and 366A of the Indian Penal Code, from the statement of the victim (PW10) and the other evidence available on record, it is established that initially the victim was taken away from her legal guardianship by Appellant Laxmi Bai and thereafter both Appellants Laxmi Bai and Aabhas Kumar had taken the victim away along with them and they went and visited various above-named places. There is no evidence available on record to show that at the time of abduction or kidnapping of the victim, Appellant Chandan Singh was present there and made any participation in this regard. Therefore, his conviction under Sections 363, 366 and 366A of the Indian Penal Code is not sustainable and is thus set aside.

19. As regards sentence part, considering the facts and circumstances of the case that the incident was of the year 1999, i.e., 23 years old, the Appellants are facing the lis for the last 23 years, Appellant Laxmi Bai has already undergone jail sentence for about 1 year in this case, Appellant Aabhas Kumar has already undergone for about 1 year and 9 months and Appellant Chandan Singh has already undergone for about 2½ months, I am of the view that interest of justice would be served if they are sentenced for the period already undergone by them for their above-stated affirmed convictions. Ordered accordingly.

• 20. So far as fine sentences are concerned, since the Appellants have been sentenced for the period already undergone by them, it would be in the interest of justice that their fine sentences are enhanced. The fine sentences of Appellant Laxmi Bai for her offences under Sections 363, 366, 366A and 372 of the Indian Penal Code are enhanced from Rs.1,000 each to Rs.10,000 each, i.e., total Rs.40,000 and in default of payment thereof, she shall be liable to undergo simple imprisonment for 6-6 months for each of the offences.
• 21. With regard to Appellant Aabhas Kumar, his fine is also enhanced from Rs.1,000 each to Rs.10,000 each, i.e., total Rs.30,000 for his offences under Sections 363, 366 and 366A of the Indian Penal Code and in default of payment thereof, he shall be liable to undergo simple imprisonment for 6-6 months for each of the offences.
• 22. With Regard to Appellant Chandan Singh, looking to the fact that he is an Advocate, i.e., a law knowing person, despite that he committed this type of crime, it is directed that he shall pay fine of Rs.20,000, Rs.20,000 and Rs.20,000, i.e., total Rs.60,000 in place of Rs.1,000, Rs.500 and Rs.500 for the respective offences under Sections 372, 193(2) and 199 of the Indian Penal Code and in default of payment thereof he shall be liable to undergo simple imprisonment for 6-6 months for each of the offences.
• 23. It is further directed that the fine amounts imposed as above today shall be deposited by the Appellants within a period of two months

from today. If any amount has already been deposited towards fine by any of the Appellants, the same shall be adjusted in the amounts of fine imposed today.

24. In the result, both the appeals are allowed in part to the extent shown above.

Sd/-

(Arvind Singh Chandel) JUDGE