IN THE HIGH GOVR'E OF 3TJDIGATURE AT BIIASPUR .) ORIMINAL APPEAL HO. _CS,^V /2001 APPELIANTS. 8 (IN JAIL) ,toJ'/0~--'^.- /'^/^.•^' ^? ."' .'s'* '/.. 'p •e /^ 1. Suresh Kumar s/o Ghotelal Sa-bnami aged abou't21 years. 2. rSBiaA.rendr'a s/o HemlalSatnami .•< aged about 20 years. Both resj.dence of orain iThireya P.S. Akaltara Distt. Janjgir- CShampa (C.G.) V/s. 8ESPONDENT ri»- The S'fca'fee o£ Chhattisgarh •Khrougte P.S. Atcaltara Distt. J'anjgir-Champa (e.G.) S.T.NO. 95/99 u/s 376(2)(0) of I.P.G. i fioart of B^pgBx-Addl. 'Sesslon Judge Janjgic-diampa (C.G.!)| P.S. - Akaltara Dist-t. iTanJgl.r-caiampa (C.S.)L 1 i ! ORIMINAL- APPEAXi U/S 374 (2) O? 'ME1 (X>SS { i css.m.sKLpasassDvsB. 1 I" 01 iingie Bench ; Hon b!e ffi.". Justice Pritinker Diwc Criminal Apoec! No. 390 of_2001 Suresh Kumor and another. The State of Chhattisiaarh Shri Vijay Deshmukh, counsel for the appe!iant: Shri Praveen Dos, Dy. i5A for the State. QF This appeal is directed against the judgment of Gonviction and order of semeri.ee dQ+ed 26.3.2-001 passed by Additional Sessions Judge, Janjgir-Champa in Sessions Tn'aj No. 95/1999 convicting the accused/appeliants for the offence punishable under Section 376 (2)(3) of the Indian Pena! Code and sentencing each of them to undergo rigorous imprisonment for ten years and pay fine of Rs.500/-, in default of payment of fine to further undergo rigorous imprisonment for three months. ' • Case of the prosecution, in brief, is that on 27.12..19981 F.I.R. (Ex.P-8) was lodged by the prosecutrix (PW-2), aged: about 15 years alleging that on previous day at about 4 p.rp.i when she had gone to take bock the cattie along with Kcmti| (PW-3).and Jogendar (PW-4), accused/appeiiants met her cuid| askeri S-i"'' for <s..:;'n! favour However, she Qbjected to thei sgn.e n-id oiso cibused.them but she was cauqht hoid of bythei Qcci.i-Sisi-iAppeHnnt No. 2 Dheerendra, her mouth was gagged by| the fic'~lisB?i/"D''"an/t"t N" 1 Suresh ond then she was taken 1 !l! ; ^;::;;M^?:^ ^ ''^M.^- ;f-;-^~-,-. ;:l'»». fe... eaSSS t3 near the bushes and subjected to rape by the accused/appellants one after another. She has stated that accused/appeliant No. 2 Dhirendra first committed the rape on her and then ofher accused/appeiiant No. 1 Suresh also did the same act. She has further stated that the sntire incident has beeri witnessed by Ksnti (PW-3) and Jogendar (PW-4) and when they objected. they were abused and asked to leave the place. Thereafter, they informed her mother Kumdi Bai (PW-12) and after hearing th[s, hsr mother peached there and scolded the accused/appejlant and then the prosecutrix narrated the entire incident to her mother. She has furt'her stated that her father was not at home and, therefore, the reporf' was lodged on the next day. After completion of inyestigation, cha/lanwas fijed on 31.1.1999 under Section 376 (2)(g) of the Indian Pend^ e. 3. So as to hold the accused/appe!!ants guilty, prosecution has examined as many as 12 witnesses in support of its case. Statements of the accused/appellants were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the chcrges !evel!ed against them and pleadedi their innocence and faise impiication in the case. 4. After hearing the parties the tria! Court has convicted and sentenced the accused/appelfcmts for the offences GS mentioned above. Hence this appea!. 5. Counse! for the accused/'appelicmts submits that the accused/appellant have besn falssly implicateci on account of. previous dispute and iitigation between the parties. He submits that GS per the prosecutJQn case,'the prosecutrix.was minon 1 giri, had'''no physical reiation earlier but +he medica! report of| g^.j I.J :lil i 1 ? E ^^^t^iL^«[Lu i u<t^Tg^s^'i|ijOiKrtCTtWHi"s" i^aBaeBtffiawasi-a .ii^Ss the proseeutrix does notsupport fhe prosecution case. He submits that a very improbable story has been put fori-h by the prosecution where it is aileged that the prosecutrix was subjected to gang rape by the two accused persons in presence of Kanti (PW-3) and Jogendar (PW-4). He submits that even the F.S.L. report of the prosecutrix and the accused/appellants does not support the prosecution case, Lastly he submits that.the accused/appellQnts have already remained in jail for about six years mid, therefore, their jail sentence may'be reduced to the period already undergone by them. ; 6. On the other hand white supporting thS impugned judgment it has been argued by the State counsel that thers was absolutely no occasion for the prosecutrix to false|y impiicate the accused/appellants. He submits that even in absence of injury once the statement of the prosecutrix is found to be relidbie, accused/appellants are liable to. be convicted under Section 376 (2) (g) of the Indian Pend Code. He submits that incident has been witnessed by Kanti (PW-3) and Jogendar (PW-4) cnd they have support'ed the prosecution case. He further submits that in cross-examination dso the prosecutrix was yery fir'm and her statement dppears to be very natural and, therefore, the convlction of the accused/appellant is fully justified. .' 7. I have heard counsei for ^he per'ties and perused the I materia! avaiiable on record incluEling judgment impugned. 1 Prosecutrix (PW-2) hasstated in her evidence thart- on | ^fbe'date of incident at about 4 p;m. when she had gone to take back the^attle alohg with Kanti^PVK-3)!<md Jogendar (PW-4) ^l.Bl^,.;,,..^.^; ifTs^sss^xswscaesss.f^iSsaSv^Ksi.Ss^ titasteasw^iisiTlll iinnj ri liiiiiiirm»^n(| 'iBl fel" ! tl \ ^ :3-5!i t: @ to Bhakhrakhar, the accused/appeiiants met her and thereafter, accused/appellant No. 2 Dhirendra asked her for sexual favour. She has stated that she abused the accused/appellant No. 2 bhirendra, however, other accused/appeilont No. 1 Suresh gagged her mouth and, thereafter, she was subjected to sexual intercourse by both of them in the nearby bushes. She has further clarified thot firstly she was raped by the accused/appeiiflnt No.^2 Dheerendra and, thereafter, the same act was repeated by the ofher accused/appeilcint No. l Suresh. According to the prosecutrix, when she was being subjected to rape, Kanti (PW- 3) and Jogendar (PW-4) had asked the accused/appellants not to do the said act and then Jogendar (PW-4) had gone to cai her mother and after seeing her mother, both the cccused/appeiiants fled awoy from the spot and then thei prosecutrix (PW-2) narrated the entire incident to heri mother. She has further stated that on ths date of incident her father wos not at home and when he returned iate in the night, she norrated the entire incident to him and then in the moming F.I.R, (Ex.P-8) was iodged. Her clothes were seized by; the police and she was sent for medical exomination. In thel cross-examination, prosecutrix has stated that she had studied up to class IV oniy and has two sisters and two brothers. She hag.denied the fact that she is aged about 20- 12 years and on the date of incident she was above 18 years of age. She has further ciarified that Jogendra (PW-4) is her nephew whereas Kanti (PW-3) is her sister. .She has stcrted •J'hat at the piace of occurpence no other person was there ""except bo*h the accused/appeltants. She has further stated that as the'''~accused/appe!lant No.2 bhirendra had asked her r iil' -..J>- ^ . .si 1 i for sexual favour in presence of her sister Konti (PW-3) and nephew Jogendra (PW-4), she fe!t yery di'sparaging. She has furt'herstated that her sister Kanti (PW-3) was aiso beaten by the accused/appellant No. 2 Dhirendra as a result of which she ieft. the piace or occurrenee. She has furt'her stated that.; after leaving of Kanti (PW-3) and Jogendrd (PW-4) she had ',, asked the accused/appellant No. 2 Dhirendra that she is having her periods and when the accused/appeiiant did not believe the said statement, she asked him to check the said fact from her sanitary napkin and after checking the same, accused/appaliant left the pjace. She has furt'her statedithat at that time Hemidl, Suresh and Dinesh wer-e near the ptace of incident as they werecutting thewood. She hasfurther stated that Kwti (PW-3) and Jogendra (PW-4) had informec! her mother about the fact that accused/appeliant No. 2 Dhirendra was agking for sexual favour from her. In paragraph 24 of her cross- examination, she has stated thai' there exists some d!sj3ute between hep family and the family of the accused/appe!!(OTts and two criminai cases are pending. She has further stated that when her mother reached on the spot, the accused/appeliant No. 2 Dhipendra had ieft the place and her mother had not seen him running away form the spot. She has further stated that she did inform the poiice thot whervsbe was being subjected t6 rape by the accused/appellants^her mother reacfied there, and if this fact is not mentioned inifhe F.I.R., she cannot teli any reason. She has denied the fact fHat any painchayat meeting wascalled in the village. In paragrjqsh 27 of her cross-examination, this witness is however the fact that she was not thrown bythe accused/appejkints^h the gpound but merely she ums made lie by them and it is^or this reason she did not sustain injuries. She has further stated that when she was be'mg subjected to rape by' the accused/appellants, her mouth was gagged and,therefore, she could not raise an alapm and this fact was Jnformed by her to the poiice. She has denied the fact that she is habitual to physica! refations with number of people. In paragraph 37 of her cross-examina+ion, she has again reiterated the fact as to in what manner she was subjected to rape by the accused/appeliants. Kanti (PW-3) - chitd witness, aged about 8 years has stated in his evidence that the prosecutrix is hsr sister and on the date of incident when they were grazing the cattle in the field, accused/appeilants reached there and had asted fop sexual favour from her sister ond when she deftied ths same/ her mouth was gagged by the accused/appeSlants and they took her nearby the bushes and, thereafter, accuged/appejjant No. 2 Dheerendra undressed her sister and committed rape on her. She has furtheri stated that despite the protest of her sister, she was subjected to rape by the accused/appellants. She has stated that she and Jogender (PW-4) had also requested the aceused/oppellants not to do the said act. Thereafter, she ncirrated the entire incident to her mother.In paragraph 12 of her cross-examination she has aQam stated that the accused/appellGnts had first asked her sister for sexual favour and they were abused by the prosecutrix. Shs has furt-her stoted that the prosecutrix had asked the accused/appellonts as to why in presence of her brother and sjster, you are talking in bad terms. Thereafter, the pccused/appeljant No. 2 bheerendrd slapped her cndthen she :^ •f •fft ^ ~:?,^;/ ic'EL rt; 4^ and Jogendra had gone to her house weeping and narrated the entire incident to-the mother of the prosecutrix. Jogendar (PW-4) child witness, aged about 12 ysars has made almost similar statemerit as has been made by Kanti (PW- 3) and has categorically supported the statement of the Shravan Kumar (PW-5)—Panch of the village and the witnesses of Exs. P-1 and P-2 by which the consent of the prosecutrix was tcken by the police for her medical examination.'He is also a witness to seizure of underwear made under Ex.P-3. E)r. C.P. Singh (PW-5) is the witness who had medically examined the accused/appeilants and given his report Ex.P-9 has stated that they were capable of performing sexual intercourse. Kunwar Lal (PW-7) - father of the prosecutrix has stated in his evidence thaton .the date of incident when she retumed to his house in the night, he was informed by the prosecutrix as to in what manner she was subjected to rape bythe accused/appellants and, thereafter, the report was lodged. &r. (Smt.) Neelima Sharma (PW-8) is the witness who had medically examined the prosecutrix and given her report Ex. P-14 has mereiy stated that she had not found any extemal or internal injury.onherbody.She has furl'her stated that no definiteopinion ccm he given about the commission of sexual intercourse. Ram Kumar Sahu (PW-9) is the Patwari who had prepared the spot map (Ex.P-16). C.P. Shukia (PW-10) -'Sub Inspector who recorded the F.I.R..,(Ex. P-8). Santosh Singh (PW-ll) is the Investigating Officer who had supported the case of the Rrosecution. Kumudi Bai (PW-12) - mother .of the prosecutrix has *stated in her evidence that on the dateQf incident when she ^t lf lf-1? ii.Mi. , .'^^ ^.•^H'a^s-^L-:''^;^'':.r-':b^^^ :^^J.i~Tfc3^: a^Ss^a^^^i^ it! '^ ^ /? SSIiS3 @ <:'" was at home she was informed by Kanti (PW-3) and Jogendar (PW-4) about the act of the accused/appellants and after hearing this whenshe reached near the place of occurrence she saw the accused/appel!ants committing rape upon the prosecutrix and after seeing her they fled away from the spot and thsn the prosecutrix narrated the entire incident to her. 9. 'AAinute examination of the evidence of the witnesses particularly prosecutrix (PW-2), Kanti (PW-3) and Jogendar (PW-4) makes it very clear that on the date of incident the prosecutrix was subjected to gang rape by the accused/appeliant. AAinor contradictions if any in the statement of the prosecutrix being of indecisive nature are aiways to be overlpoked while deciding the cases of like nature. Statement of the prosecutrix thus appeors to be fu!!y consistent osnd duly support'ed by Kanti (PW-3) and Jogendar (PW-4). This Court does not see any reason to disbelieve anai discard thesame. . i I find no force in the argument^of Shri DeshmukK, counsel for the appeilants thdt as the prosecutrix has not suffered any jnjury, the accused/appellants are liable to bA acquitted. Proseeutrix had made a very categorical statemenf that she was not thr'own by the Gccused/appelldnts on the ground but merely she was made iie by them and it is for this reason she ddd not sustain injuries. Prosecutrix funther clarifies that the place of occurrence was smootK culcf, therefore, absenceof any ihjury doss not falsify the entire statement of the prosecutrix and two eye, witnesses'to the incident. Injury on the body of the pposecytrix is not a si^ie i :s qua non to prove the chaTge of rope. ......l-.f.. tisfe - ;: SSfiS Z3^a^SKnBMICT3T^*—*h-*t^iBW=S= "ZI~'"S' iJ;l -i- : -K';'~' WfVEswsrv^i i T agpnf ja>|BM!a Jia^wiud • -/PS. •psssiUtsip Aqs^isi) si SUIDS ' sij+lpuD ssDD+sqns 4.noij+i/n si jDsddo 3tj+ 'AjSuipjosoy •^no') Sltj^AqS3U3J8^J3^.Ul6u4UDJ^DM/+IUIjyui JQ A+ljDSsjlJ/yD UIOJ^ ja^^ns +ou ssop pauEndiui +usiu6pnf 31^4. 'A^usnbasuo-) -n •ui3i|4. Xq suoSjspun ^PDS^ID pousd 8^4. j' Oi psonpsj aq ADUI ssu^+uas jiDf ^i3^+ 'sjosA xis 4.noc)D joj. 110? Ui pSUjDtUSJ ApD9J|D SADtj S4.LID|j0ddD3l)+ SD +0^4. S+UDjjsddo 31J+ jo^ |9suno3 ^o+uatungjo s^+ ui asjo^ ou pui^ usij+jn^ i •oi