-^Tfc. APPELLANTS: * RESPONDENT: H1GH COURT OF CHHATTISGARH. BILASPUR Crimina! Appea! No.274 of 2006 Manoj Kumar and another Versus State of Chhattisgarh Post for pronouncementof judament on 4 Sd/-, T.P. Sharma Judge APPELLANTS: RESPONDENT: HIGH COURT OF CHHATTISGARH. B1LASPUR Criminai Appeai No.274 of 2006 1. Manoj Kumar, S/o Bhagauram Kenwat, aged about 23 years, 2. Umashankar, S/o Nanki Dau Satnami, aged about 35 years, Both residents of Vlilage Kansa, P.S. Dabhara, Distt. Janjgir-Champa (C.G.) V/ersus State of Chhattisgarh, Through P.S. Dabhara, Distt. Janjgir-Champa (C.G.) {Criminal appeal under Section 374 (2) ofthe Code of Criminai Procedure, 1973} Present: Mr. Vimal Tondey, counsel for the appellants. Mr. Sameer Behar, Pane! Lawyer for the State/respondent. Sjnflle Bench: Hon'ble Mr. T.P. Sharma. J (Deiiversd on 1J| February, 2009) 1. This appeai is directed against the judgment of conviction & order of sentencs dated 13-2-2006 passed by the Special Judge under the Scheduied Castes & Scheduled Tribes (Prevention of Afrocities) Act, 1989, Bilaspur, in Special Criminal Case No.7/2005, whereby teamed Special Judge after hoiding the accused/appeilants gu'ity for commission of offence under Sections 366, 376 (2) (g) & 342 ofthe I.P.C., sentenced each of them to undergo R.l. for sevan years & pay a fine of Rs.500/-, in default of payment of fine to further undergo R.l. for six months, to undes'go R.l. for ten years & pay a fine of Rs.500/-, in default of payment offine to further undergo R.I. for six months and to undergo R.i. for six months, respectively. 2. Convictlon of the appeliants is chaltenged on the ground that without ar.y credible and reliable evidence the Court below has convicted & sentenced the aDoeliants in the aforesaid manner. 3. Case of the prosecution, in brief, is that on 25-9-2004 at about "1 p.m. the prosecutrix (PW-1), aged about 20 years, had gone to watch video, when she went to answer the cal! of nature towards a iane, accused/appellants Manoj & Umashankar came to her, they caught hoid of her and took her to the house of accused Umashankar. Thev ciosed her mouth with s cloth and both the ""^"3'S^S "iSSS accused persons committed foreeful sexua! intereourse with her one by one and also save threatenina to kli! her. They also committed rape on he.' on 26- 9-2004. On 26-9-2004 at about 11 p.m., she came from the house of Umashankar and narrated the incident to her parents. On 27-9-2004 she iodged a written complaint Ex.P-1 and on the basis of the saicl written complaint, F.1.R. was lodged vide Ex.P-2. Underwear v/as seized from the prosecutrix vide Ex.P-3. Caste Certificate of the prosecutrix Ex.F-5 was seizec! vide Ex.P-4. Spot map was prepared by the Patwari vide Ex.P-6. RadiologicaS test v/as conducted and age of the prosecutrix vi/as ascertained to be between 17 to 19 years vids Ex.P-7. She was sent for medicai examination to Community Hea!th Centre, Sal<ti vide Ex.P-12-A. Dr. (Smt.) Chandra Kira!; Singh (PW-10) examined her on 27-9-2004 at about 5.30 p.m. vide Ex.P-12 and found one iacerated wound & one contusion over labia minors with redness and aiso abrasion over Sabia minora, vagina was loose and hymen was irregular in shape. Two siides of vaginai smear of the prosecutrix were taken. The doctor opined that the prosecutrix was sexuaily tried. Tv/o yaginai slides of She prosecutrix were seized vide Ex.P-8. Under wears were seized from accused Umashankar vide Ex.P-10 and from accused IVlanoj vic'e Ex.P- 11. Accused Manoj was sent for medical examination and he was found caoable of committina sexua! intercourse vide Ex.P-14. Accused Urnashsnkar was a!so sent for medica! examination and he 'jvas also found capabis of committing sexuai intercourse vide Ex.P-16. Slides of Manoj & Umashankar were seized vide Exs.P-18 & P-19. Spot map v/as prepared by the Poiics Officer vide Ex.P-23. Seized articles were sent fcr chemical examinstion vide Ex.P-29 and presence of sperm was confirmed on undewear & vaginal slides of the prosecutrix vide Ex.P-30. 4. Statements of the witnesses were recorded under Section 1 61 of the Code of Criminai Procedure, 1973 and after completing investigation, charge sheet was filed before the Special Judge, Bilaspur. 5. In order to prove the guilt of the accused persons, the prosscLition has examined as many as 18 witnesses. Statements ofthe accused persons wers recorded under Section 313 of the Cr.P.C. in which thsy denied ths circumstances appearing against them and pleaded innocence & falss impiication. By way of the docuTients Exs.D-1 & D-2, the aiieged t\s/o letters, accused Manoi has taken the defence that he was having illicit reiations with the Drosecutrix and on the date of incident, the prosecutrix has invited him. L 6. After conclusion of trial and affordina ooDortunih/ of hearing to the parties, iearned Speciat Judge convicted & sentenced the appellants as aforementioned. 7. I have heard Mr. Vimai Tondey, iearned counsei for the appeilants & r. Sameer Behar, iearned Panei Lawyer on behalf of the State/respondent, and judgment as also the record of the triai Court. 8. Learned counsei for the appeilants submits that the F.i.R. has been iodged after frwo days of the incident and no explanation has been offered for delay in iodging the F.S.R. The prosecutrix was having illicit relations with Manoj and on the date of incident she has invited Manoj. The prosecutrix is a woman of easy virtue and she was also havina iliicit relstions with other persons i.e. Bharat & Ottelal. Learned counsei Turther submits that the prosecution has not jaroved the case beyond al! reasonable doubts and also failed to prove that t'ne accused persons had committed sexual intercourse with the prosecutnx without her wili & consent. Evidence of the prosecutrix is suggesfive of consent, it shows that she has invlted the appellants and when she was caugh'i red handed, she iodged false complaint against the appellanfs. Learned counseS also submits that the prosecutrix is a woman of easy virtue, her evidence requires corroboration from material particuiars, in absence o; material corroboration, her evidence is not safe to reiy to con'/ic't the appellants, that too for commission of heinous offence of gang rape which is punishable under Section 37S (2) (g) of the i.P.C. 9. On the other hand, ieamed counsel appearing on behalf of the State/ respondent submits that the prosecution has proved the case beyond ail reasonable doubts. Evidence of t'ne prosecutrix inspires confidence and Shs same is trusfworthy, she has not admitted any previous re!ations with the accused persons. She is not the consenting party, she has been forcsfuSiy raped by two persons after taking her Trom near t'ne video parSour and she was confined by the appeliants in the house of Umashankar. 10. tn orderto appreciate the contentions ofthe parties and to prove the compiicity of the accused/appeilants in the crime in question, 1 have examined the evidence adduced on behalf ofthe prosecution. 11. The prosecutrix (PW-1), who was aged about 20 years on the date of incicient, has deposed that on the fateful day at about 11 p.m. she was watching videci, when she went to ansv/er ths caii of nature in the lane of Vishambhar, the appellants came to her and took her from the lane to the house of Umashankar which was previously iocked, they lit the chimney and forced her to remov®her •®.is. •% .itC' ^ ciothes, on her refusai, accused/appeilant Manoj removed her Sslwar S. underwear and committed sexual interoourse with her. After commission of sexua! intereourse by Manoj, Umashankar committed sexual intercourse with her. They also threatened her and after commission of rape, they set her free. She went to her house and narrated the incident to hsr mother & father. She todged the written complaint on 27-9-2004 vide Ex.P-1 and lodaed the F.I.R. vjde Ex.P-2. She was examined bythe doctor, her undergarments were seized and spot map was prepared. 12. Chitki Bai (PVA/-2), mother of the prosecutrix, has deposed that on the date of incident her daughter went to watch video, but she did not came back to the house, they searched for her and on the second day at about 11 p.m., she came back to her house and narrated the incident. 13. Naan Bai (PW-3) has deposed that on the fatefu! day the prosecutrix went to answer ths cal! of nature, but she did not came back, v/hen she went to the house of the prosecutrix, mother of the prosecutrix asked her about the prosecutrix, they searched for her, but she was not traceable on that day. Second day at about 11 p.m. the prosecutrix came back anc! narrated the incident. 14. Bahadur (PW-6), father of the prosecutrix, has supported the evidence of his wife Chitki Bai (PW-2). Bajrang Singh (PW-7) has also supported the ','ersion of Chitki Bsi (PW-2). V'kram Bareth (PW-12) has deposed that on the date of incident at iate night, father of the prosecutrix was searching for the prosecutrix, but she was not traceable. Mohan (PW-13) has stated in his evidence that the accused persons were present near the place of video. 15.Dr. (Smt.) Chandra Kiran Singh (PW-10) v/ho has examined the prosecutrix has deposed that on 27-9-2004 at about 5.30 p.m. she had examined the prosecutrix and found one lacerated wound, one contusion & one scratcl' wound over labia minora i.e. private part of the prosecutrix whteh Is suggestive of the fact that the prosecutrix was sexually tried within 48 hours. The prosecutrix was also examined by Dr, Meena Armo (PW-8$ who has aiso stated that on 7-10-2004 she has examined the prosecutrix and found o!d lacerated wound over her iabia m'inora. Dr. (Smt.) Chandra Kiran Singh (PVii'- 10) has admitted in para 14 of her cross-examination that if any person forcefully presses the mouth of a woman, there may be some injury cver her mouth. She has admitted in para 17 of her evidence that the prosecutrix was accustomed to sexual intercourse because her vagina admits nvo flngers easily. Evidence of Dr. (Smt.) Chandra Kiran Singh (PW-10) reveals that injur/ .-^^'" v/as found over labia minora of the prosecutrix and her hvmen was irreguiar in shape which are suggestive of sexua! intercourse on her. 16-The prosecutrix (PW-1) has been cross-examined by the defence at iength. She has admitted in para 15 of her evidence that the accused persons had pressed her mouth, therefore, she was not in a position to cry for hetp. !n para 16 she has further admitted that she went alone in the lane. She has admitted in para 18 that the accused persons set her free on 26-9-2004 at about 11 p.m., therefore, she has lodged the report on 27-9-2004. She has also admitted in her cross-examination that she has @ot prepared the type written complaint at the instance of the Police Officer. in para 23 of her cross- examination she has stated that the appellants lay her down on the ground and committed sexual intercourse, therefore, she has not received any externa! injury, except pain over her mouth. She has denied In paras 45 & 48 of her cross-examination that she has written the letters Exs.D-1 & D-2. She has also denied anv relation with Manoi or Bharat. !n her detailed cross-examination she has specifically deposed that the appeliants are the persons who have committed forceful sexual intercourse with her after taking her to the house of Umashankar and she has denied all the adverse suggestions. 17. Chitki Bai (PW-2) has also denied all the adverse suggestions and spscificaliy stated in her evidence that when her daughter did not come back, they searched for her and on the second day at about 11 p.m. her daughtsr came back. Naan Bai (PW-3), Bahadur (PW-6) & Bajrang Singh (PW-7) have also denied the adverse suggestions made on behalf ofthe defence to them. IS.Accused Manoj has taken specific defence that on the fateful day he was invited by the prosecutrix and the prosecutrix used to write iove letters to him, but the prosecutrix has denied the same. According to her evidence, she was confined for about two days in the house of Umashankar and when she came back to her house, she lodged the report on the next day. Her medical examination shows injury over her private part which is suggestive of commission ofsexual intercourse. 19. There are some discrepancies in the evidence ofthe prosecutrix (PW-1), Chitki Bai (PW-2), Bahadur (PW-6) & Bajrang Singh (PW-7), they are villagers and they have been cross-examined in detail. Minor discrepancies, contradictions & omissions are natural in their evidence. But defence has not been able to bring anything substantial in their cross-examination to discredit their testimony. Evidence of the prosecutrix corroborated by the evidence of Chitki Bai (PW-2), Naan Bai (PW-3), Bahadur (PW-6) & Bajrang Singh (PW-7) and supported by the medica! evidence inspire confidence and sufficient for drawing inference that both the appellants had committed sexua! interoourse the prosecutrix. 20. !n c'ases of rape, corroboration is not a rule of law, but is a rule of caution and a rule of prudence. In this case, the prosecutrix, who is a village background giri, has categorically and specifically stated about the incidenf. Her evidence has been corroborated by the evidence of Chitki Bai (PW-2), Naan Bai (PW-3), Bahadur (PW-6) & Bajrang Singh (PW-7). 21.As regards the question of consent, suggestion has been made to She prosecutrix on behaif of the accused/appeiiants that she was having illicit relations with Manoj and on the date of incident Manoj was invited by the prosecutrix which the prosecutrix has specifically & categorically denied. Defence has not adduced any defence evidence, especlally when the aileged tv/o letters had been denied by the prosecutrix, to show that those ietters had been written by the prosecutrix or that Manoj was having illicit relations with the prosecutrix. In absence of such evidence and specific denial of the prosecutrix, no inference could be drawn that the prosecutrix was consentin< party and the accused persons have committed sexual intercourse on the prosecutrix with her will & consent. 22. Both the accused persons forcefully took the prosecutrix from near the video parlour to the vacant house of Umashankar where they confinsd her and committed rape on her one by one. After appreciating the evidence avaiiable on record, the Court below has convicted & sentenced the appeliants under Sections 366, 376 (2) (g) & 342 of the !.P.C. Finding of the Court belcw is based on lega! and ciinching evidence. Conviction of the appellants under Sections 366, 376 (2) (g) & 342 ofthe I.P.C. is sustainable under lavv. 23. As regards the question of sentence, the two accused persons had kidnapped the prosecutrix and after confining her, committed gang rape on her. The Court below has awarded minimum sentence under Sectlon 376 (2) (g) of the i.P.C. !t has not committed any illegality or infirmity in sentendng the 24. For the foregoing reasons, the appeal is liable to be dismissed and it is hereby dismissed. Sd/- T.P. Sharma Judge