HI^H COURT OP CHRATHS^RH 4T BIL.4.SPt,m APPELL^NTS (In Jail) RESPONDENT Criminai ^OE>@<aS No. 1260 of 2002 1. Umendra, S/o- Shyamtal, 20 years, R/o. viii.Mucipal, P.S.Kanker, bistt.Kanker' 2» Saja, S/o. Siyamram, 24 years, r/o/vjll Dhekuna, P.S^Narharpur, Distt.Kanker Versus Stote of Chhatttsgarh, l^rough^ Dsstrict Magistrate, Kanker, (APPEAL UNDER SECTEON 374 (2) OF THE CObE OF CRIMINAL PftOCEOURE, 1973) (SB: Hon*b(e Mr. T.P. Shorfta, J,) Pre^ent^ .Shri Prafu!( Bharat &. Santosh Bharat, coun^-1 for the'appejiants. Shri Sudhir Bajpai, by.6oyt.Advocat€for 1tie State/respondent. ORAt ,7UD@MENT (Passsd on 9th February, 2009) This oppeal ?s dlrected against the judgment of convictior? and order of sentence dated 29-10.2002 passed by the P^st AddltjonaJ Se.ssions Jvd^, Kanter, m Sessions Trial No326/2002 whereby the !earned First Additbna! Sessions Judge after hoSding the appelbnts guJtty. for the offenc.e ' of gan9 w.pe convicted under Se-ction 376 (2) (3) of Ifie Indian'PaneJ Code. and sentenced tti.em to undergo rigorous jmprisonment for 10 years and to pay a fjne of fts. 1000/-, in defauSt of payme.nt of fine to further undergo rlgoroys imprlsonment for 6 months, 2.. Judgment Is chaltenged on the 9rou.nd that wlthoyt ther»e. belng a^y clinching and retlable .evidence the court below has convicted and ^nter^^.d the appeJSants as aforementJoned and thereby committed an jJtegallty. r 3. Case of the prosecution, m bnef is that prosecutrjx Ku- bigeshwari (PW-2) aged about 17 years was on the date of jncidtent j.e. 8.5.2002 ot about 2 p.m< going towards her maternaf aunfs house for ta^ing yegetabie at that tme Shonta (PW-8) aged about 10 years met ?n a way and told her that her matBrnal aunt (AAarni) has called her in the house. When she ^os g^ing to the house of maternoJ au.nt of Shanto (PW-S), both the accu^d persons came to her and caught hold her and took her In the hou^s of Joy Kumar. They ha^a ciosed the door and pressed the mouth Of the. prosecutrix. Accused (Saja rerpoved her clothes and forcefully commltted se-xua! intercour^ w?th hcr. Accused Umendra has also commitl'ed forccfuljy sexual intercoyrse with her. She tried to rescue. but she was not sycceeded. Accu.sed persons ^ent from the room after cbsing the roo?n from outside^ After sometsmc hcr molii^r was informed by Itie children of 1^e yiilage then her mother namely, Pynla Bai (PW-4) abng with o1^er persons came to 1+ie hoys^ of Jay t&jmair* o^d opened the room- Pro^cutrJx narrated the incjdent to hcr mother and oltier persons and lodged ^he report on 9.5,2002 wjthin 12 hours vicie Ex.P/3. She was sent for medicai @yaminat?on vlde ExP/t She was examined by Dr.Smt. Hewlato .Sahu (PW-t) and ophed that she i^ accystonied to intercourse. Two sti'des of vagina! smear were taken vide Ex?/2. Her marksheet was r^covered yjde Ex,P/6, Spot ^ap was prepared by patwar? vide Ex.P/7/ Slides were reeoyered vide Ex.P/8. Underwear of accused Umendra ^QS ^Jzed yide ExP/10. Accused persons were sent for medicoJ examination.where they were foynd capabie of performing ^Bxua! Intercourse v»de Ex.P/11 and P/12. Srpegma wos not found over the gbn^ penis of -i+ie accused persons. Seized artlctes were sent for chemica! examination vide Ex,P/22. 4, After completion of jnvcstigation, charge sheet was fjled in the Coyrt of the Chief Judicior! Magistrate, Kanker who in turn comm'tt'ed the ca^ to the Court of Sessions Judge, Bastar from. where- th®First Additiona! Sessions Judge, Kcinker receiyed ^e sarpe on transfer for trial. © 5, In order to prove the guilt of th<B appellents/acajsed, the pro^ecution exomined as many as 11 ^itnesses. StatBment of the accu^d/csppeltants we-re recorded under Section 313 of the Code of CrimJnal Proc^dure, 1973, m which they denied itie circumstances appearing against them and InnQcency and false implication is ciaJmed. Accu,<^d.Umendr<s. has specifjcally taken 1+$e defence t^at the prosecutrix wa??it to t^arry with him but on hte reftjisa!, she has falsely j^pjjcoted him in crime in question. The accysBd/appeliants have a!so adduced defence witnesses namely, Jay Kumar Netam (E)W-1), Rambt (DW-2) and j^Qnnu ftam (DW-3)< Jay Kuwcir (DW-1) has stated that he was haying no j<now!edge about the incident but he aime to Nnow about so?ne Dikeshwari's kand, Other witnesses have deposed that they haye not heard anything relating to the present incident. 6, Learned f^rst Additiona! S^'ssions Judge after affording opportunjty of hearjng to th^~ porties, convicted anc! sentenced the accused/QppeJtants as aforementjoned. Z I have he<ird Shn PrafuJ! Bharat & Sontosh Bharat, counsel for the appellants and Shri Sudhir Bajpal, AddS.Pubblic Prosecytor/Dy^ovt.Advocate for' the- State/respondent and perused the jydgment TOpugned as also reaord of the court beiow. 8-. Learned counsel for the appeliants submlts ^that pro^^cutrjx-. Digeshwari (PW-2) is unmarried tady but in her medic^tJ examinatjon ^he ws&s found accustomed to sntercourse. No any jnjury was found over her body, Joy Kumar (DW-1) whose house has been used for the ajlegcd commisslon of offence has not been supported the case of the prosecytlon. T^e prQsecutrix i^as trying to rparry w?th accused-Umendlra but accused-Umendra refiised to marry, therefore, she hcxs falsely implicated In the alSegad commissjon of offence along with his fried 0aja< 9. On 1+ie oltier hand, jydgment is sypported on behsJf c?f the respondent/State and submits l^hat prosecutrlx Gigeshwarj (PW-2) has categorically stated the incldent. Her statement i^ supportBd by If^e s statement of Shanta (PW-8) who was present at the time ^ien accused persons dragged the pro^ecutrlx in the house of Joy Kym^yt- Lecxrne-d coynsel further submits that evidence adduc^d on behdf of the prosecytion is sufficient for drawing jnfer^nce Ifiat the aceused persons havc commttted the offence of gang rape punishabJe under ^ctjon 376 (2) (3) of the Indian Pena! Code and for the purpo^^ of con^^nt, statement of 'rtie prosecutrjx is suffictent for drawsng inferenc^. that the accysed/appeilants have comsnit^edl the offence of 9ang rape wll+iout her consent, Her statement is sufficlent for drawing inference that she was not consenting party jn accordance with the provjsion of Section 114A of the Indjan Eyidence Act. 10, In order to appreciate th.e contentions of tiie parties and to connect the accysed/appellants m the crime In question, I have examlned 1+ie evidence odduced on behalf of the prosecution< In case- of gang rape, the pro^^cutrix. Is required to establteh the factum of sexual jntercourse by 1+ie accused persons and the absenc^ of consent Jn case of proseajtrix n^t beiow the age of 16 years. According to case of the prosecutbn, ProsecutrJx &igeshwari (PW-2)was aged about 17 years at the time of incictent. $he has deposed m her evidence that on the date of incident, she was gosng towards the house of her aunt for taklng vegetable at th<xt tlme. Shanta met herQ.nd requesttd tp go to the hou% of her moternal aunt (MamO. When she was going to the Kouse- of matemaj aunt of Shanta, syddenly beth the accused persons came from back and caught hold her and took her one house. Shante ron away from the place of incident. Accu^^d persons threatBned her cmd accused-^aja ofter closlng. ^he door removed cSoth and committ'ed forcefytly sexual Intercourse wlth her, After commlssson of r<ye by accusBd-Saja, cxecysecl Usnendro, came insjde the room and he also committed sexucil intercoyrse wtth her and they restrained 1+ie prosecutrix m ^e. rooiin. 11» After sometime he.r mol^er was Informed by the chiidre-n of the viJla^e then h@r mother namely, Punia Bal (PW"4) aSong wlth other persons came to the house of Jay Kumar1 and opened the room. Prosecutrix narrated 1+ie Incident to her mol+ier and other persons and Sodged l+^e raport vldte Ex<P/3, She was exammed by Dr.Smt. Hemfata Sahu (PV/-1). Her school certificate was seized vide Ex<P/5, Spot map was prepared by patwari yJde Ex.P/7. Sharsta (PW-8) has steted in her eyidence that whj!e prosecutrix ^as going towards her house for tak'ns vegetabte, accuSBd persons came •Hiere and dragged the prosecutrlx towards the house. of Jay Kuniar o.nd as a resu.It <?f fear, she ran away towards her house. JalsSngh Soroj (PW-3) ^ Pynsa Boi (PW- 4) (^o-tiher of 1+ie prosecutrjx) haye stated that bigeshwari was in 1+ie hoyi^ of Jay Kumar. When they went there, she ^as sjtting snside the room and narrated that the accu^d persons have drogged hcr jnside the r^om ond committed .se.xual intercourse with her Dr^-Smt.Hemtata Sahu (PW-l) has examined the prosecutrJx who had stated that no externa! or internal injury were found over tt»e body of Ifie proseeytrjx. She abo opsned that th@ prosecutrlx was accustomed to Intercourse. Two siides of yaginal smear were taken. Accused persons were also examined by Dr. Vijay Shukla 0:>W-10) hos stated that on 10.5,2002 l.e. wlthln 48 hours of the incsdent he hasexamined accused-^aja vide Ex,P/ll wid accused-Umendra vide Ex.P/12 <ind found them capabte of performing sexual intercourse, their smegma were obsent of thesr privQte ports "L€. gbn^ penis. He has admitted jrs pQra-7 of his cross-examination l4iQt smegma may be ab^ant as a resutt of wash of prjvata p0rt, Defence has cross-examined the prosecutrlx in detast and In her detai! cross-examinatjon, she ho^ stated that liie appeilants are the persons who had taken hert in the house of Jay Kumar and committed forceful'y sexual jntercourse with her. She has denied any preyious retotion or bve affairs wlth accused-Umendra, She has olso suggested that witih a yjew to abscond and teaye parental house she went to 1+ie house of Jay Kumar (DW-1). ^amlai (OW-2) ond Mannu Ram (bW-3) haye denled the incident as not known but Jfliy Kumar (&M^-1) in who<^ hou^. the alleged offence has been committed has stated that he came' to know that some Incident has be-en committed retetlng to prosecutrix Dsgeshwarl These. witnesses haye not stated anything that no offenc®has been committed but 1+iey have stated that they haye not hear-d anyl^ing retetlng to the commission of offence though record of prosecytion Q:^ sho'ws that thess two psrsons haye been srrssted on 10.5.2Q02 i.s. 3 dsy of Ifie incident» It. shows that they are not materjal witnesses relatlng to the commission of offence. Djgeshwarl (PWa-2) has specificalSy stated that the appellants haye forcefully committed sexua! sintercourse w»thher. She has not admitted 1+ie suggestion of con^^nt. 12. In accordance with <Section ii4A of Ifie Indian Evidence Act, 1872 If the factum of consent is denied by the prosecutrix then st can be safely infer1 ond presume thot she hos not consented or she was not conserstsng party. Missing of smegma wsthin 48 hours of the incident is suggestive of commission of intercourse or woshing of the private part by l+ie persons concerned/acctfsed. The defence has .cross-examined the pros^cutrix In detail, but they haye not been able to elicit anything in liieir cross-exomlnatjon to dlscard the testimony of 1+?e prosecutrlx. Her testimony is supported by Shanta yW-8), 10 years aged girl as a!so Jaisingh (PW-3) and Pynjya Bai (PW-4) who jrnmedlately went to the house of Ja^ Kumar where prosecutrsx was found and narrated the Incjdent to them. In case of rape or gang rope, corroboration is not a need of bw but as a rule of cautson and ryle of prudence. 13, Testimony of a yictim of ^xual assault should not be discarded on the ground of absence of corroboration, In the ca^ of Bh^gjnbhal ¥$. Stat@ of ©yjratwhiSe dsaSing with the question of corroborGtJon and reSiabstity of Ihs testimony of a victlm of sevucil Qssault, the Apex Court has heid that ttm the India ^tting, refu^i! to act on 1+ie testlmony of a vjctim of ^xuaJ assault in the absence of corroboratlon as a rute, is adding Insutt to injury. Why ^ioyld be eyidence of the gir! or 1+se worpan who comptalns of rape or !%xuaj motestation be viewed wsth the aid of spectades fitt'ed lenses tinged wi1+? doubt, disbelief or suspensjon? To do so te to justify the charge of wa?e chauvinism m a rnate doffinated". On prindple the evidence of a victim of sex assault stands on par with evidence of an Injured-witness^ Just os a witness who has sustdned injury is not ijkely to exculpate 1+ie real offender, the 'AiR 19^3 SC 753 '<A evidence of a vsctim of sex offence Is entitjed to greQt weight, ab%-nce of corroboration notwithstonding. 14. Corroboration of the testsmony of a victjrp of sexual es^iult is not ^h^ qua non for accepting her evidence^ The evidence of a victim of sexual offence is entitled to great weight, absence of corroboration notwithstanding and whJle corroboration in the form of eye witness account of an Independent wttness moy often be forthcoming ln physic<xl assault< 15. In this case, defence has not been able to elicst anything to show If^at jn any circumstanc.es 1+ie prosecutrix has implicated falsely that too on .the groyrscl of her pre.stlge l+iough she has not admitted any preyloy^ relation with any accused persons and accordlng to her rnedscal re-oprt she was accustomed to jntercourse. but only on 1+ie basss of fact that she Ss accystomecJ to jntercourse, her testimony cannot b@ discarded. She has specJfica!!y stated that the appeilants are the persons who have committ'ed forcefully sexua! intercourse with her inspires confidence ond trustworl+sy, 16. After appreciatsng tiie evidence avaslable on record, the coyrt beSow has conyicted the appeljants for l+ie offence punlshable ynder Section 376 (2) (g) of 1+ie Indian Pena! Code. The Judgment of convictlon is sustairsable ynder thc law. 17. As regards the question of sentence, the court bebi^ has SBntenced 1+^e appeSSants rjgorous impn^onmBnt for 10 yeor.s ond has awarded mmimurp ^ntence. prescribed ynder the law. Sentenc^ is a!so adequate. 18. Fo^ 1^^ fore.going reasons, I do not find any sybstonce in the appeaS, Jn the result, l4^e appeal has no force, same is (jabte to be djsmis^d and it is hereby dismissed. Sd/- T.P. Sharma Judge B/-