/ /> ?^. '&x"v' IHE COUR'r 01' H..K3H COJRI" QE' JUE..2GMUR3 AI JABAIMjR. i"S ^A;l ^14?_ ^," J):'^s». ^^^...i.^'^» Bo.A.R. eRlMlNAfc Ai!i?ESu N4..) _[_SH_'/1999: (UNEER SE£:T3£M: 376 (2) (g) :SF I*?.e.) &P|'S££ANTi-1. Ashok Ruinar son, yf Sltasbja. Kuinar : liln Jail) • - ! ' " :;:.AKa;';: ';:1';:,•' Bairagi, aged afcoa-b^^Syjearg^ •.^,: residsnt of E!unasra:»,:tt^s'6'fe..|Bar:g: 2. Anil Jtumar aged abStfts:'-:|Sji$eaCs:.«l;B son of RajaraTsi.Satnami,!^.. resioent of SSan'de.c'a*.'j'&lie^ '.*:.. "r'--\ . station:Utai, <aist;t;.EaBE9i'i "t'. -/"Versus/- .RBSPCN&EKt'i'i- The State of M.P. &£PEftiL UHl.ER SSiC-'SJClS 374 W e%IMfflA&,ERait.EB@]BS !!li ^n »^;' APPELLANTS RESPONDENT HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 794 of 1999 Ashok Kumar and another VERSUS State of Madhya Pradesh Smt. S. Tiwari, counsel for the appellants. Shri Pravin Das, Dy. G.A. for State. CRIMINAL APPEAL UNDER SECTION 374 (2)OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (07.01.2011) This appeal is directedagainst the impugned judgment and order dated 17.11.1998 passed by Fourth Additional Sessions Judge, Durg, in Sessions Trial No. 322 of 1995 convicting the accused/appellants for the offences punishable under Sections 376 (2) (g) and 440 IPC and sentencing each of them to undergo rigorous imprisonment for ten years and pay fine of Rs.5000 u/s 376 (2) (g) and rigorous imprisonment for five years and pay fine of Rs. 1000 u/s 440 plus default stipulations. 2. Case of the prosecution in brief is that on 20.06.1995 at about 9.30 a.m. FIR Ex. P-11 was lodged by the prosecutrix (PW-5)- a married lady aged about 26 years alleging that on the previous night i.e. the intervening night of 19/20.06.1995 her husband had gone to some other village and she was sleeping along with her two daughters in her room. At about one O'clock in the night the accused/appellants entered into her room from the courtyard and accused Ashok gagged her mouth, took her nearby room and committed forcible sexual intercourse with her. Thereafter the co-accused Anil also committed rape upon her. She further alleged that when she switched on the light opening the door, the accused/appellants ran away form the spot saying that they would deal with her husband when he would return during the day. It has also been alleged that the prosecutrix could not raise any alarm as she was under fear. In the morning she informed about the incident to her maternal Aunt Jambai (PW-3) and the village •^s"'^.' ^ .^ -,y^' :8. ,,;•-.<&••• -a- Kotwar. Based on the above report lodged at the Police out post Anjora, F.1.R. Ex. P-17 was registered by P.S. Fulgoan, Durg and after investigation challan was filed on 28.07.1995. 3. So as to hold the accused/appellants guilty, prosecution has examined 09 witnesses in support of its case. Statements of the accused persons 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 the accused/appellants for the offences as mentioned above. 5. Counsel for the appellants submits that the accused/appellants have been fa!sely implicated in this case because there was some dispute between the children of the accused Anil and the prosecutrix. She submits that a very improbable story has been put forth by the prosecution and the accused/appellants have been unnecessarily implicated in the present case. She further submits that the medical report of the prosecutrix does not support her case as no injury whatsoever has been found on her body including her private part. She further submits that in the case of gang rape there is every likelihood that some injury will be caused to the prosecutrix. She submits that the prosecutrix did not raise any alarm at the time of alleged incident though undoubtedly her two daughters were sleeping along with her and the incident had taken place in the dense locality where number of houses are situated. 6. Supporting the impugned judgment it has been argued by the State counsel that there is absolutely no evidence on record to show as to why the prosecutrix will falsely implicate the accused/appellants. He submits that a very prompt report was lodged by the prosecutrix as the incident took place at one O'clock in the night and within less than nine hours the report had been lodged by the prosecutrix after informing to her maternal aunt and village Kotwar about the incident. He further submits that in case of a married lady there is remote 'sS •V- -3' possibility of injury on her private part. He further submits that the prosecutrix did not raise any alarm because she was threatened by the accused/appellants. In respect of the identity of the accused persons, it has been argued that on the previous evening also the accused/appellants had come to her house because they were aware of the fact that her husband was not at home and they had asked her for sexual favour by offering Rs. 100 but she refused for the same. On the same night accused/appellants entered into the prosecutrix house after consuming liquor and committed forcible sexual intercourse with her. He submits that the FSL report (Ex.P-16) of the accused Ashok is positive and spermatozoa has been found in his under wear. 7. Heard counsel for the parties and perused the material available on record including thejudgment impugned. 8. Prosecutrix (PW-5) in her Court statement has stated that she knows both the accused/appellants very well as Anil is son-in-law of her maternal father-in-law whereas accused/appellant Ashok is his friend. On the date of incident her husband had gone to her sister's house at Risali and stayed there in the night. At night when she was sleeping with her two daughters after bolting the door from inside, the accused/appellants entered her room from court yard by scaling the compound wall. When accused Ashok gagged her mouthy and took her in the other room, she thought that it was her husband who was taking her to other room however when she asked as to who he was then it was disclosed by him that he was Ashok along with accused Anil. She has stated that after beating her both the accused/appellants committed forcible sexual intercourse with her one after the other. She has furtherstated that while she was subjected to forcible sexual intercourse she did protest as a result of which her bangles were broken however the accused/appellants over powered her and committed the offence. She has also stated that while committing the offence the accused/appellants were drunk and she could not raise alarm because she was threatened and was under fear. According to her, after commission of offence when the accused persons were going out she switched on the light and told the accused/appellants / v^ ^w zL >VI u^ ^ 4- that she would report the matter to her maternal aunt. She has further stated that on the previous evening also at about 5 p.m. the accused/appellants had come to her house and when the door of her house was opened by her daughter, the accused Anil offered the prosecutrix Rs. 100 and had asked for sexual favour but she refused the same by clearly saying him to leave the place immediately. She has further stated that when she was first taken from her room she was under impression that it was her husband who had taken her. After commission of offence she kept on weeping for the entire night as she was under tremendous fear and she could not dare to come out from her house in the night and on next morning she had informed her maternal aunt about the incident. She has categorically denied the fact that she does not know the accused/appellant Ashok. She has further stated that accused/appellants were brought to the police station tying their hands by her maternal uncle and the police persons were informed by her and her uncle about the commission of rape. Dr. V. R. Meshram (PW-1) who had medically examined the accused/appellants has categorically stated that they were capable of performing sexual intercourse. Udho Ram (PW-2) - husband of the prosecutrix has stated that after the incident when he returned to Durg, he was informed that his wife has been subjected to rape by the accused persons. Jambai (PW-3) - the maternal aunt of the prosecutrix has not supported the prosecution case and has been declared hostile. Jewrakhan (PW-4) - a villager and seizure witness of Ex. P-7 to P-10 has categorically stated that in the village he was informed that the prosecutrix has been subjected to rape by the accused/appellants. Dr. Mamta Pandey (PW-6) who had done the medical examination of the prosecutrix vide Ex. P-12 has stated that as the prosecutrix was a married lady, no injury was found on her private part and on the other parts of her body. She has further clarified in her cross-examination that if a lady is habitual to sexual intercourse and have children, during intercourse she will not suffer any injury. The Investigating Officer R. D. Yadav (PW-7) has supported the prosecution case. The village Kotwar could not be examined as during the pendency of the trial he expired. M. L. Daheria (PW-8) is the Inspector who had registered the FIR Ex. P-17. Lan Das (PW-9) - a local villager has stated that upon c%^ -9r receiving information about the incident along with other villagers he had gone to the police station where the accused persons were a!so present and the prosecutrix had informed the police about the commission of rape on her by the accused/appellants and thereafter certain articles were seized. 9. If the entire evidence is considered minutely, it is clear that the prosecution has succeeded to prove its case beyond all reasonable doubts. Statement of the prosecutrix inspires full confidence of this Court and there is no reason to disbelieve the same especially when the accused/appellants have failed to adduce any evidence as to why they have been falsely implicated. 10. In the result, the appeal being devoid of any merit is liable to be dismissed and it is dismissed as such. ,—— ——— Sd/- Pritinker Diwaker 1 Judge •^^ >^' lL(t ^l / m !!• ^ 5) .-a