WW, Wm,W @ 1Iirm “i 200 wast-m (13W) WWW mutuaifzé’rm ’ awimm 2, CasC of the prose of incidcnt the pms€cut able to syeak and beca‘ her and she was resid along with her children her bath to the pomi a‘ not return, her brdgml asked Ramu Muria pix two boys dragging a gn the beshmm bushes committing rape mth t co—accused Gunga fled; the wage Kotwar and ‘e by him in the police s itself. During inves medieal examination t Dr. S. Das (PW-3) ex After completing inves Court ofJudioial Magis/ cution, in brief, is that aroundthe date ‘rix was mentally disturbed, she was not ise of this reason her husband had left mg with her brother Sanatram {PW-2) on 19.5.1999 she had gone ta take ,'4V.700 in the evening and when she did ‘Sanatram went in search of her and re village who told him that he had seen liforcibly; Thereafter, he went towards and saw that the appellant was Lie prosecutrix. After seeing Sanatram, from there. He narrated the incident to thereafter, report of EXP} 1 was lodged n at about 20.30 hours on 19.5. 1999 gation the prosecutrix was sent for Maharani Hospital, Jagdalpur where ‘ ed her and gave her report of EXP] 2. 'gation charge sheet was nled in the ate First Class, Kondagaon. During trial prosecution. Thereaf were recorded in whi against them in the p Mtnesses were examined by. the ,' statements of the accused persons they denied the evidence appearing oseeution case and pleaded innocence t s' t c I WW,W,W m m 1H 200 mam (W) WWW mwifzétm .3’ ‘ *Wsnéa and false imnlication 1‘11 thc abave c%ence. Howevar. learned Trial Court after hearing counsel far the respective parties convicted and sentenced the appellax1t as mentioned above; ‘i- Lealned- counsel for the appellant submits that the yrosecutrix did not idemjfy the accused persons by their name. She has stated that apart from the present appellant one Rajkumar also comniutted rape with her and pointed towards Gunga as the second rson who committed rape with her. However, no test ide ation parade was conducted during investigation. Referri to the statement of PW-l NavaJi Bai. ued that her husband had informed taken the prosecutrix and raped her, was hled against Godhan. Even PW— 2 Sanatram, the compl ‘1ant, in paragraph 1 of his deposition has mentioned the pre ence of third. person at the place of incident but he has t been identined. Thus, nom the evidence of these Witn es it is clear that it’s a case of false implication. 5- On the other hand, learned counsel appearing for the Statefrespondent supp )rted the impugmed judgment of the trial Court.‘ \ V e n ' c n wife of Sanatram. it is her that one Godhan however, no charge sh h e g o e. s mw,m,%mgx WT m‘ an 200 m (W) mmm MHW . mmm mwiwm ' $eiimm a—q- a i have heard leam$=d courmel for the parties and nerused the material available on record including the impugned judgment. 7‘ PW~6 the prosecu‘Iix has stated that 2-3 boys caught hex, took her behind the Kondagaon rice mill and fm‘cibly raped her. At the time of incident she was mentally disturbed. Pointing towards the appiellant she stated that he forcibly raped her, however, at that tige her brother Sanatram came to the spot and beat the appell ant. She has further stated that she also identjjies co-accusec Rajkumar: though she does not know name of the accused yersons. In cross-examination she has stated that the accused persons took her from the pond and at that time she was fu y conscious. She has denied the suggestion that she acc Inpanied the accused persons of her - own free will and stat d that thev forciblv took her.‘ Her statement is duly corro orated hem the statement of PW-2 Sanatram, her brot , Who has also stated that the prosecutrix is his sister, e Was mentallv disturbed at the time of incident, sometimes e used to talk and sometimes not. She had gone .to take did not return rhe went her in the pond, he en ’ was informed that 2-3 oys were taking a girl and thereafter, he started search of bath to the pond, howevm, when she search of her. When he did not dnd red nom the passersby whereupon he prosecutrix. Around 5.00 p.m. he \ \ J7W37Hxmfeil’tf7‘“ 7.7%—r"r"'.75‘ ""‘ . "i’i“"r"”‘ m rtwézkw 31$: m h h h h ‘ . i q u h.» . mw,m,m W m 1n 200 wast-m (W) WWW WWifztam ‘ éwiwm ,§-, found the prosccutrix hjnd the rice mill where the appellant was committing rape with her and co-ancused Gunga was sitting nearby and wa ching. In the meanwhile, his brother Bhakturam also cam ethere and both of them caught the accused persons and ought them to home. However. he could not identifv the third nerson as he had iled &om the place of occurrence r seeing them. Defence has not been able to elicit anything the cross-examination of this witness, which makes his versio untrustworthv or unrehable. g- ' So far as argum ts advances by learned counsel for the appellant that the a cused persons were not put to test identilication parade, i concerned, the accused persons were duly identined by the omplainant and their name appears in the promptly lodged R and thus, there was no disput From' cross— examination of the Wi lesses. the defence has tried to take a defence that the pro s I e regarding identity of the accused persons. e in a case of gang rape presumption is that , evidence before the Co shall presume that she 9. On the basis of aforesaid analysis, this Court is of the .t the trial Court has rightly convicted :ction 376(2)(g) of the TPC based on’th \ rix was a consenting party. However, as per Section 114A of the Evidence Act When the prosecutrix states in her irt that she did not consent, the Court did not consent for sexual intercourse. considered opinion thz the‘ appellant under Sr \ e r e ' t ; J; 4 WW,W§,W W m 1n 200 swarm (W) 'mmm waawm mafam WW wW a3a'wnm proper appreciation of‘ the orai and docummtary eiiidence available on récord and there is no illegality or infirmity in the mlpugned judgnent. ¢g- I iO- In the result, thc appeal being devm'd of substance is liable to be dismissed and is accordingly, dismissed. r Sdl- KW“? x. Judge