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V’ _ 7 /Wq_ £37 ,1»- a i1, {a ,‘g . L. s i F M . \ e :V " W . ow; V‘ , HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 787 of 1995 APPELLANT Laxmi Singh VERSUS RESPONDENT State of Chhattisgarh Criminal Appeal No. 788 of 1995 PPELLANT Ganesh VERSUS RESPONDENT State of Chhattisgarh Shri Abhaya Tiwari counsel for the appellants. Shri Vaibhav Goberdhan PL for respondent/State, CRIMINAL APPEALS UNDER SECTION $374 (2) OF THE CODE OE CRIMINAL PROCEDURE. J U D G M E N T (1.107.201 0) Since the aforesaid two criminal appeals arise out of the same judgment dated 31 .03.1995 passed by Additional Sessions Judge, Raigarh in Sessions Trial No. 195/1994, they are disposed of by this common judgment. 2. By the judgment impugned the appellants in both the aforesaid appeals have been convicted under sections 366 and 376 (2) (g) of the Indian Penal Code and each of them sentenced to undergo rigorous imprisonment for ten years with fine of Rs. 1000 u/s 376 (2) (g) and rigorous imprisonment for‘two years with fine of Rs. 200 u/s 366 IPC, plus default stipulations. 3. Case of the prosecution in brief is that on 12.05.1994 FIR (Ex. P-1) was lodged by the prosecutrix (PW—1) - a married lady‘aged about 20 years alleging that on that day at about 5.30 a.m. she was subjected to forcible sexual intercourse by the accused/appellants. It is alleged that on' 1005:1994 as there was some quarrel with her husband, she left her matrimonial house and decided to go to her parents’ house. She first went A I" -1- to Gharghoda where she spent the whole night. On the next day she proceeded for Raigarh by bus where after alighting the bus she asked the accused/appeHant Laxmi Singh, who at the relevant time was in the company of accused/appeilant Ganesh Ram, about the way to Sarangarh bus stand‘ on which both of them took her towards the jungle where they both consumed liquor and also offered the same to her but she refused for the same. Thereafter, they took her in the bushes by the side of the road and even after the cries raised by her they removed her cloths and committed forcible sexual intercourse with her one by one. After investigation, the chailan was filed and the prosecution followed. 3. So as to hold the accused/appellants guilty, prosecution has examined as many as 14 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 charges levelled against them and pleaded their innocence and false implication in the case. 4. After hearing the parties the trial Court has convicted and sentenced he accused/appellants as mentioned above. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the appellants submits that present appears to be a ' case of consent for the reason that the prosecutrix being a woman of easy virtue herself had gone with the accused/appellants and allowed them to have sex with her. He submits that once the prosecutrix who undisputedly was a major lady at the relevant time had consented for the physical relationship with the accused/appellants, offence under section 376 (2) (g) IPC cannot be made out against them. He' submits that even the ingredients of the section 366 IPC are not attracted to the‘case in hand and therefore the judgment impugned convicting and sentencing the accused/appellants as above is not in accordance with law. 7 . On the other hand supporting the judgment impugnedrcounsel for the respondent/state submits that the‘accused/appeilants taking advantage of helplessness of the prosecutrix have committed sexual intercourse with her and that the defence has utterly failed to prove the case of consent or. e t f3— false implication, the findings recorded by the court below are just and proper and call for no interference in this appeal. This apart, he submits that the report was lodged by the prosecutrix very promptly and that the witnesses to whom the incident was narrated by her have also Supported the case of the prosecution. 8. Prosecutrix (PW-1) has stated in her evidence that after being driven out of her matrimonial house by her husband, she first came to Gharghoda and then by catching bus she came to Raigarh. According to her,’ at Raigarh bus stand she asked the accused/appellant Laxmi Singh about the way to Sarangarh bus stand, on which he told her to sit in his rickshaw or else she would miss the bus. After she sat in the rickshaw‘ accused/appellant Ganesh Ram also sat by her side and then they took her towards the jungle, on the way they bought liquor and after reaching the spot they consumed it and also offered it to her which she refused. According to her, after being taken to the jungle she was subjected to forcible sexual intercourse by them twice one by one. Thereafter; while being taken back in the same rickshaw when she reached near barrier and asked the owner of a betel shop situatedthere to save he‘r from the clutches of the accused/appellants and also narrated the incident to him. According to her, the owner of the said betel shop asked one Chaitram to solve her‘probiem. When the accused/appellants did not disclose their names to said Chaitram, his son who was also present there, took them to the police station where the report was lodged. Cross examination of this witness also carries the same thing as in the examination-in-chief. Laxmi Narayan Kurre (PW—3) has stated in his evidence that on the date of incident he saw the accused/appellants and the prosecutrix coming in a rickshaw and near Chaitan Kirana Stores she got off the rickshaw and narrated the incident to him and thereafter the reportwas lodged. Purshottam Makhija (PW-4) — the owner of Chaitan Kirana Stores has stated that on the date of incident the prosecutrix came to his shop and narrated the entire incident to him and at that time the accused/appellants ere standing near the betel shop of one/Phul Chand. Geeta Bai and Chaitram (PW-6 and PW-8 respectively) are the witnesses who were standing near the said betel shop and made the same statement as has been made by the prosecutrix‘and other witnesses. Dr. MD. Joshi (PW—9) ‘s . “ w ._ L' .— who conducted the ossmcatlon test of the prosecutnx has stated In his report Ex. P 8 that the prosecutrlx was aged In between 16 and 18 years. Dr. S.K. Mishra (PW-11) who had medically examined the accused/appenants has stated that they were capable of performing sex His reports are Ex P 9 and P 10 Dr (Smt) Madhu Dubey who had V examined the prosecutnx has stated that she being a married lady was habituai to sexual intercourse and no definite opinion regarding rape could be given. Rashmi Kant. Mishra (PW-14) who had conducted the investigation has supported the case of the prosecution. 9. Minute solutiny of the ewdence available on record particularly that of the prosecutrlx (PW-1) Laxmi Narayan Kurre (PW—3) Purshottam: Makhua (PW 4) Geeta Bar (PW~ ) Phul Chand Bareth (PW- ) and Chait Ram (PW-8) makes it crystal clear that taking advantage of helplessness of the prosecutrix, the accused/appellants subjected her to forcible sexual intercourse Moreover FSL report Ex P 18 according to which 4 spermatozoa was found on the petticoat and vaginal slides of the prosecutrix, also disentitles the accused/appellants for being awarded acquittai.’ 10. ln the light of the aforesaid discussion, this Court is of the considered opinion that the findingsrecoded by the Court below are in consonance with the evidence of the witnesses adduced by the prosecution and therefore, no interference in this appeal is warranted by this Court. Accordingly, the appeals lack merit and thus are liable to be dismissed. Dismissal thus is the result of these appeals. Appellants are reported to be on bail. Their bail bonds stand cancelled. They be despatched to jail immediately to undergo remainder of the sentence. ~ Sd/- . Pritinker Diwaker l V Judge /