WI. m"..%uu§ £.9.~3u$u~u; vi 2003 mm (W) W mar$ /@$ é’ a1 2003 anawm (W) WWW 3mm m mmm‘ WW WW QRWHW rgSpectivaly and in default of paymant of fm€ to iffu‘fher undergo R1. for one month oach. Caoo of the prosecution in undisputodly a married lady, a§ village Kalartarai, Police Station Kota, District Bilaspur to Power meeting her uncle Pramod Kumar 1e relevant time as Constable in z reached Power House station at iries regarding reaching Charouda 3 Charouda bV a Minidore. After d abouthher uncle’s quarter and of her uncle on foot. At this 1e on his Auto and took her in his ming his Auto he introduced her lat he is the friend of Gourha. to outrage her modesty and on e and started talking to Shrawan. itrix in his Auto and after moving i the prosecutrix to sleep in the two boys came there and talked distance. The name of one of l came near her and started In; objection he slapped hen Therez brief is that the prosecutu'x who is ged 21 years, had gone from her Houee station for the purpose of Gourha who was working at t1 RRF‘. at B.M.Y. Charouda. Sh about 6.GO p.111. and made enqu and thereafter, she proceeded t< reaching Charouda, she enquire proceeded towards the quarter juncture, appellant Shrawan car Auto near a house. After statk with one D‘P. Singh saying t‘l However, said D‘P. Singh tried being objected to, he set her fre Shrawan again took the prosect V around for some time, parked his Auto near his house and asked Auto. Around 12.00 in the night, to Shrawan after taking him at a the boys was Vinod who later on aking indecent advances, on her dter, the a pellants dragged her in GRPRJ — FS/246~ 2/2007 —- 50,0097 WW,WW WT m......:.........u.... 7 mm (W) mmm WW%E‘‘$W 3 %af1%rqané¥‘r Vi 2003 a neaxby house, took out 1161‘ Wt‘an'ng appamls and rapad(Bura Kam) her. The act of forcible rape was further repeatod aftor about an hour by both tho appellants. In the morning both of them took hsr to the houso of Gourha and calied the youngor brother of Gourha nanmiy Vinod. After 16 aving her at the housae of Gourha both the appellahts; went away in the Auto. She‘nar'rated the incident to Vinod. Gourha and asked him to lodge a report whereupon he said that he is' atone and the accused persons are rowdies, she should retuln tc the village and as soon as his brother returns from Kharagpu r’ he will call her for the purposes of reporting m6 matter to the polica Thereafter, he left the prosecutrix at Raipur station by his motorcycle. After reaching Kota, she disclosed about the incident to her husband and brother—in-law. On return of PIaJnocl Gourha, the prosecutrix was- called and thereafter, she along with her uncle Pramod Gourha and Vinod Gourha lodged the report at Police Station G.R.P. Charouda. On the basis of re sort of the prosecutrix the offence against the present appellants is also the acquitted accused D.K. Singh was registered. Prosecntrix was sent for medical examination to District Hospital, Durg. , After completing investigation charge sheet. was filed in the Court of Special Railway Magistate, Raipur who in turn committed die case to the Court of Sessions Judge, Raipur and the same was received on transfer by learned Additional Sessignsgudge for trial. GRPRJ — lag/246‘ 2/2007 — 50,000.’ W mQY/a ........../ Wm (W) O38 A ...................... 1:1 2003 mmfai% mm m mmm» 4 WW wW %a$m3néw of thE 113C and Section 145(B} accused] appellants Sluawan L§arn€d Trial Court fram 3d Ch‘argES' under Section 376 (2){g) cf fhe Railways Act 1989 against the and Vinod whae‘as charge under Section 354 of the IPC and 145(3) of m6 Railways Act was framed agajrxst accused D.K. Singh. Fmsecution in Oldcr to cstablish the charges against the accusedpt :rsons examined 8 Witnesses in all. Thereafter, statements of the aC cused persons were recorded under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them in tie prosecution case and pleaded innocence and false implication. (DW. l) as a defence Witness. After hearing counsel for convicted and sentenced the mentioned above. Learned counsel for the MK. Bhaduri, vehemently a3 occurred in the intervening night of 2‘2m1/ 23m February, however, report of the same was lodged by the prosecutrix only on 3rd March indicative of the fact that the same ght in consultation with Pramod 'lt was further argued that the pmsecutrix has made materiel improvements Higher deposition They also examined Goutibai the respective parties, trial Court appellants Shrawan and Vinod as cused D.K. Siugh was acquitted of However, a< the charges framed against hing. appellants Mr. RK. Jain and‘Mr. ‘gued that allegedly the incident with a delay, of 7 days which is was. lodged as an afterthou Gourha and Vinod Gourha. GRPRJ ‘ FS/246— 2/2007 —— 50,000.— before th€ Court which makes her version unmh'abla and untrustworthy. Though the alle gation is that the prosecutrix was subjected to rape by two persons twice, however, on the medical exammation of the prosecutrjx no injuries was noticed on her perSon, therefore, in the aforeSdid circumstances Considering the fact that the report was lodged after 7 days of the incident and that no injury was found ton‘ the person of the prosecutrjx, defence of the“ accused persons that act of consent, can be probablised. sexual intercourse was with her 1t has been further submitted that accused Shrawan Kumar and Vinod Mahobia were aged about 21 and 26 years respectively at the time of incident and as such, both are‘young boys and have been convicted to, undergo R.I. for lG years, therefore, considering t1 e facts and circumstances of the case and further considering the age of the accused persons, the Court below ought to have convicted them with some lesser jail sentence. Reliance is placed on the judgments reported in (2004i 9 ‘ sec 699 in the matter of stat: (2006] 9 SCC 589 in the matte alias Raj Kama: Yadav Vs. Stat H On the other hand, learn: d counsel for the State supported die impugned judgment of trial Lourt a of Chhattisggh Vs. Derhaiand r of Raj Kumar alias Raju Yadav :e of Bihar. GRPRJ a FS/246— 2/200l % 503%.— . “WA {b3& mm , mi 2002 mm (W) mWW WWW%‘WW §’ $Wm‘ . Org“) 3% ' AM . WW,§W,W mm (W) WW3!“ 6 WWiwW Qiaifa‘nm ; i I hava heard learhed comsel for both 1:116 parties and perusgd the material avaiable on record including m6 impugnad judgment of the trial Court. of offence is the intervening night of 223d it is trua that date .Rq of EXP/1 has been lodged by the i.e. after 7 days of the incident. The expianation for delay in lodging this report given by the prosecutrix is that she had gone to 23rd February and Rj &. prosecutrix on 3rd March i Charouda to meet‘her uncle, however, before she. could reach the quaxter of her uncle She was subjected in the intervening night and. thereafter, she reached her uncle’s qnarter only to hnd that he was not there , she narrated the incidentto the younger brother of his u cle namely Vinod Gourha and on his back to Kata and will be called as soon as his brother Framed Klimar Gourha returns from Kharagpur to lodge the report as accused persons are of bad character and it ge report at this juncture; she ‘left for Bilaspur and on return of her uncle she was called and report was lodged and in these circunistancesr delay of seven days in lodging the report was occurred. Taking into consideration totality of the Circumstances the trauma that the prosecutnx had to suffer 1n the intervening night of 22nd] 23rd February at the hands of the apnellants, non—filmg of WW wt 2003 to rape by the appellants as he had gone to Khar pur advice that she should go would not be safe to lot l . Oyfl’ Z.Q&....... WW WW (W) gm m 2003 mafgam‘ 3 WW wm %aifanan%¥k eport promptly doee not make case of the prosecution doubtful and reasons assigned for lodging the report belatedly are satisfactoxy. )f the accused persons in the crime been examined as PW—l. She has stated in her deposition that while she was proceeding towards the quarter of her uncle Pramod Gc urha at Charouda on foot,‘ accused Shrawan came on the Auto, tock her with him on the pretext that ‘hE Shail b6 taking har to th . process, he first took 1161” to thé §i€d to outrage her modesty. T x thS house of Shrawan Wham s was parksd before a houso, acc the Auto. In the meanwhile, V1 time Vinod abused the. prosec pulling her Sari aild thereaftei quarter. Accused Vinod follo" clothing firefly Shrawan commi standing There with knife. Afte took turn. This act was repeat in the morning at about 5.00 t1 ‘ Kumar Gourha. However, Prai She met her younger brother to Vinod Gourha. Vinod Gourha To establish involvemsnt n quEstion, th€ prosecutrix has e desired destination and in the house of accused D.K. Singh, who hereafter; she was again taken near he met appellant Vinod. The Auto used Shrawan asked her to sleep in nod appeared there and after some utrix with filthy language, started Shrawan dragged her to a nearby red him and after taking out. her tted rape upon her while Vinod was r she was raped by Shrawan, Vinod :d by both the appellants twice. and 1ey took'her to the house of Pramod nod Gourha Was not present there. Vinod Gourha in the quarter. She .r narrated the Whole incident GRPRJ — FS/246— /2007 ~ 56,90Q. 2 i r g3 . Gama. xoaob ,, m m WW (W) a 2003 WWW WWW1¥wW émimanést‘ stated mat Pramod Gourha is back, 116 shall be infonning h€ back and 1'11 thase circumstanc come back after anival of Praxm evid€nCE it haS besn s11ggest€d was in fact done at 4.09 am: prosccutfix who has stat€d the 3.00 a‘m. It has beEn further s had a consensual intercour36 1 by hér‘ Similarly in paragrap] prosscutn'x has denied the s Shrawarx had intercourse with report against them at the instance of Pramod Gourha. \ The evidence of the prosecutn'x is duly corroborated by the statements of Vinod Gourha ( that on the morning of incident accused Vinod and Shrawan ame to the quarter of his brother and woke him up and asked a out Pramod Gourha stating that a girl has come. They took him ear the railway quarter where the prosecutiix, who is his nephew in relation, was sitting. Thereafter, he Came back with the prosec nix to the quarter of his brother. .The proseetitrix started Weepin and on enquiry, she narrated that Vinod and Shrawari had beatel her and raped against her Wishes. .He has corroborated the ver ion of the prosecutijx to a great W-2) and Pramod Gourha (PW—3). PW—2 Vinod Gourha has stat GRPRJ ‘ FS/246~ 2/2007 — 50,003‘ not present, as soon as he comes r and only then she should come as, she should return to Kota and 1d Gourha. In paragraph 20 of her by defence that act of intercourse , which has been denied by the .t she was raped at about 2.30 to uggested in paragraph 21 that she vith Vinod which has been denied 1 45 of her crosseexamination the uggestion that with (her consent her and that she had lodged the e . WW are/03% Wm (W) 2003 W mmm ? §7 WWI Kumar Gourha ext€nt Pramod PW-3) has also stated that he had gone to Kharagpur as he was on leave for seven days. He returned from there on 28th February 2O 3 and on his renun his brother Vinod Kumar Gourha informed that the prosecuuix had come in the intsrv€ning Inight of 22nd] 23 February 2003, herrmodesty was outraged by accused BK. Singh and in the night she was lavished by appdlant Shrawan and V 10d. with the consent of the prosec for gang rape under Section intercourse by the accused persons is proved, there is a Section 114A of»-t11e presumption as to absence 03" Evidencé Act is reproducoci as uhder: u O L the fact that both the appellant had sexual intercoui‘se with the prosocumx, is established. So far as defence 70f the ap ellants that intercourse was done is conceined,in a prosecution (2)(g) of the IPC where sexual wwwewm consent ‘ After learning about the incident, he called the prosecttn'x from village and lodged the repnrt. ’l‘hus, from the statem nts ofthe above three witnesses, 114A. Presumntion a s to absence of consent n certain osecut i r prosecution for rape (b) or clause (C) or cl clause (g) of sub-sec the Indian Penal Code, sexual intercourse by the accused is proved and. the question is Wl ether it was without the censent of the wor alleged to have been ons for ra e. — In a der clause (a) or clause se (d) or clause (e) or on (2) of section 376 of 1860 (45 of 1860) where GRPRJ a FS/246* 2/2007 L 50,099.’ 7 1‘ 6 “ u n m§m72 mmt}%érw %a1fvm311é¥r to m6 quarter of hel uncle he forelbly sexual intercourse with Icircumstances under which the 1 by both the appellante who W r ‘1iiésecut1ix till they 1116i her in T17 the accused persons that act of the consent of the prosecuttix ca O11 the basis of aforesaid oplnion . . that the trial . Court has t ‘ infirmity 1'11 convicting The appel' the IPC. However, from the c ingredients of Section 145 of t established during the trial and < Section 145(B) of the Railways At‘ a raped and she states in her evidence before the court that shc did not Taking into consideration who has categorically stated that her uncle Pramod Kumar Gourh place for her the anpellants Sh take he1 to the quarter of hei unt 1e however nistead of taking hei and another accused Vmod had her and further considering the )rosecutrix was subjected to rape ere absolutely strangers to the .e night of the incident, defence of sexual intercourse was done with nnot be accepted; analysis, I am of the considered not committed any illegality or ants under Section 376 (2) (g) of vidence available on record, no 1e Railways Act, 1989 has been :onviction of the appellants under consent, the Court shall presume that she. did not consent. the evidence of the prosecutrix she was searching the quarter of a in Charouda which was a new ravtan met her and promised to 2t, cannot be sustained. GRPRJ — FS/246H 2/2007 _ 50,000.— ~ Q‘r’A' /°3 W $ A W W“ vi 2003 mm (W) mmm I/ WW=¥WW agaif‘atrm Now coming to 1:116 argun appdlajlts that looking to tho Vinod Mahobia, who wem adm mspectivoly at tho fime of incide: imposed lesser jail sentence 1‘ minimum, learned counsel have matter of State of Chhattjsgar Hoa’ble Supreme Court conside1 was admittedly 18 years at th( already sewed 6 1/2 years of i 'sentm1C€ imposed upon him by reduced the sentence from 10 ye the matter of Raj Kumar Vs. S Apex Court while dealing with t1 of the IPC reduced the sentence 7 years to 3 ix; years considering in lodging the F.I.R. and that t" victim did not notice any conji ‘ victim. In the instant casa alS( aged 21 and 26 years respectivel a delay of 7 days, therefore, con: available on record and further < persons, the jail sentence of 10 y to be reduced. rents of learned counsel for the age of appellants Shrawan and ittedly 21xand 26 years of age, 1t, the Court below ought to have ,pon them than the prescribed relied upon the judgment in the h Vs. Derha (supra) where the ing the age of the accused which z time of incident and who had mprisonment consequent to the the trial Court and had a family, ars to 7 years of RI. Similarly, in tate of Bihar (supra) the Hon’ble re sentence under Section 376 (l) of the appellant of that case from g that there was a delay of 8 days 1e doctor who had examined the rmatory evidence of rape on the 1, the appellants are stated to be y, the report has been lodged with aidering the overall circumstances :onsidering the age of the accused ears imposed upon them deserves GRPRJ i FS/246— 2/2007 —~ 50.{.‘-{?{). <: WW, Wan—6;, W Wm mm (13W) mmfawitl mmm mm m /7_ In the. result, thf; appeal partly allewed. Convictiml of The appellants under Sectionr37 (‘2)(g) of the IPC is maintained. 'r However, their conviction und r Section .o145(B) of the Railways Act, 1989 is set aside. ThEy sentence of 10 years R I impo ed upon the appellants is hereby reduced to 7 yeals of RI In a dmon the appellants shall pay defaulL of pa} ment of fme, the} fine of Rs 5 000/ €ach and haw to further undmgo RI. for T116 app€al iS disposed of accordingly. E\ Jail e‘ acquitted of that charge. Id...“ Sdl- Dhirendra Mishra Judge _ I 0r6~ 1...%. : 1a 2093 mwawm amiamanési six months each. ' " : '