N'THE HIGH COURT OF JUDICATURE CHHATTISGARH AT BILASPURI Cr.A.No. & 3Q [2006 ‘ $ingle BanchT I - E CRIMINAL APPEAL U/S 374! l OF CODE OF CRIMINAL )4, / ' " PROCEDURE .n I épplellant ‘ 1. Suresh Mandal Cm i S/o Dinesh Mandal, 3O yrs. R/O Dongaghat P.S.City Kotwali ‘9agda1pur Distt. Bastar (0Q ) i‘ 2. Rajkumar 'S/iOZDetari Baghel' 2o y»; . ' R/o DongaghatVijaybhata , P.S.City Kotwali Jagdalpur ‘Dis'ttEBastar (LQI) . ‘ L. Versus ;§ Respondent: State of Chhattisgarh _ Through: Distt. Magistmts \ Jagdalapur Pistt. Basta‘r (£44,) f L. HIGH COURT OF ,CHHATTISGARH AT BILASP (Hon. Mr. JusticePritinker iwaker Crimin‘al Appeal No. 734 of 200 ures nl and: another VERSS U f h State o Chhattisgar. ‘ r « Post for pronouri‘cement of‘judgment on 1g.“ 200;,9‘5 i’j Sd/— Pritinker Diwaker Judge / UR D) 6 Sh Mada , Thrs appeal Is drrected against Judgment dated 3082006 r xpassed by Addltronal Sessrons Judge Bastar In Sessrons Trlal No 2354/2004 convrctrng the appellant No 1 for the offences punishable i iunder Sectrons 376(2) (g) 341 323 and 506 B IPC of the lndlan E ‘ Penal Code and sentencrng hlm to undergo rigorous Imprrsonment : for ten years wrth fne of Rs 2000 u/s 376(2)(g) rigorous ? imprisonment for three months With fine of Rs 500 u/s 323 Simple {3 imprisonment for one month With fine of Rs. 100 u/s 341 and ; rig‘oro'uS imprisonment for one year with fine of Rs 500 u/s 506—B IPC plus default stipulations and conVIcting the appellant No2 j under section 376(2)(g) and sentencrng him to undergo rigorous _‘ _ imprisonment for ten years and pay fine of Rs 2000 plus default é stipulations 2.l Facts of the case in brief are that on 4 10 2004 FIR (EX P 4) ’ ’ was lodged by the prosecutnx (PW-5) aged about 22 years alleging \ that on 3 10 2004 at about 8 30 p m when she was returnlng home _ on bicycle from her workplace on the way she was stopped by appellant Suresh Mandal taken to nearby plot where he showed hi HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon Mr Justice Prltlnker Dlwaker) Criminal Appeal No. 734 of 2006 Suresh Mandal and another. ,,‘ I APPELLANTS t I RESPONDENT t VERSUS State of Chhattis‘garh. Shrl Prafutta Bharat counsel for the appellant * No1 ‘ Shn D R Sharma learned Sr counsel wrth Shrl r Anand pandey, for appellant No 2 é ‘ Shrl Valbhav ‘ Goverdhan PLH for v the I respondent/State l l CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF l , r \ - CRIMINAL PROCEDURE JUDGMENT. (18 112009) ' ..... ‘ s desure to have sex With her it ls further alleged that when the prosecutnx refused to succumb to his demand she was beaten by , him It Is alteged that some how she managed to flee away from the clutches of appellant Suresh Mandal and then report was lodged by .her On the basrs of the report lodged by the prosecutnx offences under sectrons 354 342 34 323 and 506 IPC were registered agamist the accused persons Thereafter she was sent for medical e>§amlnatlon to Maharanl Hospttal Jagdalpur where Dr (Smt) S Ttitakur (PW-3) examined her and found some Injuries on her pnvate pagkrAccordmg to thls Witness on Internal examination of the prosecutnx she found that on touching her pnvate part the prosecutnx was complaining paln there was erosion m the penphery off her pnvate part and the prosecutnx was opined to have been subjected to rape After medical examinatlon of the prosecutnx her statement was recorded under Section 161 of the Code of Criminal Procedure In which she has stated that she was subjected to rape by appellant No 1 and when the Intercourse was being committed, appellant Rajkumar was put on guard to watch the srtuatron 3.; So as to hold the accused/appellants guilty, prosecution has . examlned as many as 10 wrtnesses Statements of the accused/appellants were also recorded under section 313 of the Code of Criminal Procedure In which they have dented the charges levelled against them and pleaded their Innocence and false implication inithecase. 4.~ After hearing the parties the trial Court has conVIcted and sentenced the accused/appellants for the offences mentioned above ’5. Heard counsel for the parties and perused the materlal available on record Including the judgment Impugned 6. Shn Prafulla Bharat counsel for the appellant No1 submlts that Initially there was no allegation of rape agamst appellant ‘Suresh Mandal but subsequently the prosecutnx has Improved her ‘l. g nt :ihaS been admitted, in paragraph 10 of the cross examination of the ‘prosecutrix where she has categorically stated that initially she had ‘loéged the report‘underFSection 354 IPC but subse’quently ‘in her statement recorded under Section 161' of the Code of 'Criminal iPrdcedure she made an‘aliegation of rape also He submits that in the Court statement the prosecutrlx has stated that after reaching her house she narrated the entire incrdent to her aunt Kamia Panigrahi Shyambai Rita Narendra and Rakesh whereas Kamla verision falsely implicating him. He submits that fact of improveme i S iPgpIgrahl (PW 8) has stated In her statement that on the date of y iInCIdent the prosecutnx had not disclosed anything to her Similar is ithei statement of Laxmi Panigrahi (PW-10) who has stated in her statement that the inCIdent of rape was not disclosed to her on the date of inCIdent i i 7. up Shri DR Sharma learned Sr counsel appearing for the appellant Raikumar submits that so far as this accused is concerned there is no speCific allegatlon against him regarding rape. According to him,‘ the only allegation against this appellant is that he was guarding the situation when the appellant Suresh‘MandalEwas Committing the offence He’ submits that he would adopt rest of the arguments advanced by Shri Prafulla Bharat counsel for appellant Suresh Mandal 8. .’ On the other hand counsel for the respondent/State supports the impugned Judgment and pomts out that even if in the FIR the prosecutrix has not made any allegation in respect of commISSion of rape but in her statement recorded under Section 161 of the Code of Criminal Procedure she has categorically stated as to in what manner she was raVIshed by appellant No 1 Suresh Mandal as well as the act of appellant N02 Raikumar He submits that the statement recorded under Section 161 of the Code of Criminal Procedure and the Court statement of the prosecutrix are duly corroborated by each other He submits that Dr (Smt) S Thakur (PW-3) has stated in paragraph No.1 of her statement‘about two i f ’4 i w 1 EXtérnal injurie‘s one scratch in the middle of the breast andron left Slde of her neck Hymen of the prosecutrlx was opmed to be ruptured there was swelling and erosron In the prrvate part and on touchrng It she was complalnmg pain He submits that Immediately after the Incrdent prosecutrlx had Informed Laxml Panrgrahr (PW-10) that she was subjected to rape by appellant Suresh Mandal and that y thelappellant Rajkumar was on guard for watchmg the srtuatlon Hep submrts that Shallendra Kumar Panrgrahr (PW 6) cousm of the .pro‘secutnx has also stated that Immedrately after the InCIdent the chemical examination under Ex P 14 and the report thereof Is Ex P- 15 Which confrrms the presence of spermatozoa over the same - t . z , t £9. ; Minute scrutiny of the material available on record clearly reveals that the prosecutnx has categorically stated In her court statement that when she was returnrng home on her brcycle both the accused persons met her on the way, accused/appeHant Suresh iMandaI stopped her took her to the nearby plot by dragging asked her to permrt hlm to have sex and when she refused to do so he threatened her of lrfe When thrs wrtness trred to escape from therr I: clutches appellant Suresh Mandal again caught hold of her harr made her fall on the ground tied her limbs wrth her scarf and committed forcrble sexual Intercourse wrth her According to her* i when appellant Suresh Mandal was rndulgrng rn sex other accused namely RaJkumar was guarding the srtuatlon The prosecutnx has g categorlcally stated In paragraph 19 of her court statement that as accused Suresh Mandal, had threatened her of llfe, she had not ydis’closed the incident of rape in the frs-t instance Thus the contention of the counsel for the appellant that rn the FIR the I prosecutnx has not stated the Incrdent of rape and therefore the convrctron of appellant Suresh Mandal under sectlon 376 IPC rs not ‘ sustainable In the eye of law has no force Moreover Dr (Smt) S *Thakur (PW-3) has categorically stated that on touching the private part of the prosecutnx she was complarnlng parn and there was _ ip‘?oSecutnx had narrated the entrre Incrdent to hrm of commrssron of ’ irape by appellant No 1 He submits that vagrnal slrdes were sent for 2 ‘ (A@ erOSIon and swelllng In the periphery of her pnvate part This wutness has also opined that the prosecutnx was subjected to sexual Intercourse. Thus the statement of the prosecutnx Is duly t t cérroborated by the medical evidence also Though in the FIR the prosecutnx has not mentioned the InCIdent of rape for the obvrous _ reason that she was threatened by accused Suresh Mandal of her life she has categorically stated the same In her statement recorded under Section 161 of the Code of Criminal Procedure and also In the statement recorded In the Court As regards appellant No2 Riailcwmar the prosecutnx has categorlcally stated that when apcused Suresh Mandal was committlng the offence he was giuardlng the Situation Had accused Rajkumar been fair on his part . It was his first d'uty to Inform the pollce about the InCIdent but as he did not do that his act becomes punitive In law 1b i Having given a thorough and thoughtful consideration‘to the- eVIdence led by the partles this Court Is of the opinion that the t Judgment Impugned passed by the trlal Court conVIctIng and sentencmg the accused/appellants as mentioned above Is well ' founded and need not be dislodged I 11. ‘ Consequently, there is no force in the appeal and it’ is .; I dismissedlaccordmgly; . H -» > 5 , ‘ \f‘r’ii——~ 1 ’ " Sdl- z ‘ Pritinker Diwaker Judge