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2022 Supreme(Chh) 32
HIGH COURT OF CHHATTISGARH, BILASPUR
Rajendra Chandra Singh Samant, Arvind Singh Chandel, JJ.
Sunil Gupta & Ors. – Appellants
Versus
State of Chhattisgarh & Ors. – Respondents
CRA Nos. 130 of 2020, 45 of 2021, 194 of 2020, 275 of 2020 and 405 of 2021
Decided On : 17-01-2022
For the Appellant :Amit Sharma, Ashutosh Mishra, Sanjay Agrawal, P. Chetan Kumar, Manoj Paranjpe and Vivek Mishra, Advocates.
For the Respondent:R.M. Solapurkar, Govt. Advocate.
The wide scope of the definition of gang rape and the offence of rape subsequent to the Amendment of 2013 justified the rejection of the bail applications.
Headnote:
Atrocities Act - Conviction under IPC Sections - 363, 366A, 376(D), 323/34, 506-II - The court rejected the applications for suspension of sentence and grant of bail to the appellants based on the evidence of the prosecutrix and the eye-witness, and the wide scope of the definition of gang rape and the offence of rape subsequent to the Amendment of 2013.
Fact of the Case:
The appellants were convicted and sentenced for various offences under the IPC and the Atrocities Act based on the evidence of the prosecutrix and the eye-witness. The appellants sought bail claiming that the evidence was erroneous and not sustainable.
Finding of the Court:
The court found that the evidence of the prosecutrix and the eye-witness supported the conviction of the appellants, and the wide scope of the definition of gang rape and the offence of rape subsequent to the Amendment of 2013 justified the rejection of the bail applications.
Issues: Conviction based on evidence of the prosecutrix and the eye-witness, erroneous evidence, sustainability of conviction, grant of bail during pendency of appeal.
Ratio Decidendi: The court relied on the evidence of the prosecutrix and the eye-witness, and the wide scope of the definition of gang rape and the offence of rape subsequent to the Amendment of 2013 to reject the bail applications.
Final Decision: The applications for suspension of sentence and grant of bail filed by the appellants were rejected.
JUDGMENT :
1. Shri Amit Sharma, Advocate for appellant in CRA No. 130 of 2020.
2. Shri Ashutosh Mishra, Advocate for appellant in CRA No. 194 of 2020.
3. Shri Sanjay Agrawal, Advocate for appellant in CRA No. 275 of 2020.
4. Shri Manoj Paranjpe and Shri Vivek Mishra, Advocates for appellant in CRA No. 45 of 2021.
5. Shri P. Chetan Kumar, Advocate for appellant in CRA No. 405 of 2021.
6. Shri R.M. Solapurkar, Govt. Advocate for the State/respondent.
7. All these appeals arise out of the common judgment of conviction and sentence, therefore, the applications for suspension of sentence and grant of bail filed in these appeals are being decided by this common order.
8. Heard on the applications for suspension of sentence and grant of bail to the appellants filed in these appeals.
9. The appellants have been convicted and sentenced by the judgment of conviction and order of sentence dated 31-12-2019, passed in Special Criminal Case under the Atrocities Act No. 05/2019 by the Special Judge {under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act} Raigarh, District Raigarh, C.G. in the following manner with a direction to run all the jail sentences concurrently:-
| Sl. No. | Conviction | Sentence |
| 01. | U/s. 363 of the IPC | R.I. for 7 years and fine amount ofRs.1,000/-, in default of payment of fine further R.I. for 6 months. |
| 02. | U/s. 366A of the IPC | R.I. for 7 years and fine amount of Rs. 1,000/-, in default of payment of fine further R.I. for 6 months. |
| 03. | U/s. 376(D) of the IPC | Life imprisonment and fine of Rs. 20,000/- in default of payment of fine further R.I. for 1 year |
| 04. | U/s. 323/34 of the IPC relating to prosecutrix | R.I. for 6 months and fine amount of Rs. 1,000/-, in default of payment of fine further R.I. for 1 month |
| 05. | U/s. 323/34 of the IPC relating to victim | R.I. for 6 months and fine amount of Rs. 1,000/-, in default of payment of fine further R.I. for 1 month |
| 06. | U/s. 506-II of the IPC | R.I. for 2 years and fine amount of Rs. 1,000/-, in default of payment of fine further R.I. for 1 month |
10. Learned counsel for the appellants in all these appeals submit that conviction of the appellants is erroneous and without the basis of evidence of prosecution beyond reasonable doubt. The conviction is based only on the evidence of the prosecutrix (PW-1) and the eye-witness Minketan Rathiya (PW-2) which are full of contradictions and omissions. The prosecutrix (PW-1) has contradicted in all her statement under Sections 161 and 164 of the Cr.P.C. and the Court statement. Hence, conviction against the appellants is not sustainable.
11. Learned counsel for appellant Sunil Gupta (appellant in CRA No. 130 of 2020) submits that the prosecutrix (PW-1) and eye-witness Minketan Rathiya (PW-2) both are related to each other. They have made totally false statement against the appellants. The story of the prosecution that the minor prosecutrix was gang raped by the appellants is highly improbable. Dr. Sushama Ekka (PW-9) who has examined the prosecutrix has very clearly opined in her report (Ex.-P/12) that no opinion can be given regarding commission of recent intercourse with the prosecutrix and further, she has reported that the hymen of the prosecutrix was intact, therefore, no case is made out against appellant Sunil Gupta. Hence, it is prayed that appellant Sunil Gupta may be granted bail during pendency of the appeal filed by him.
12. Learned counsel for appellant Kheer Mohan Painkra (appellant in CRA No. 194 of 2020) submits that this appellant was not involved in the alleged commission of offences. The prosecutrix (PW-1) has made admission in her cross-examination that this appellant was not the person who had raped her. Relying on the judgment of Hon'ble the Supreme Court in the case of Pardeep Kumar v. Union Administration, Chandigarh, (2006) 10 S
