is dimmed againstwthe jm‘igment’ of 2. This criminai appea} convicTion and order of Sentence ciated 29—4-2064 passed by the iSi Additionai Sessions Judge, Adubikapur 1'11 ST No. '29i i 2002 whereby the appellaht has been coqvwted under Sections o2.) read “71th Section 34, 5063, 366, 342‘1‘ead with Section 34 and 376i2}{g} of LPG. and sentenced to undex‘go RI. for 1 yearwith fme of Rs. 1600,! -, RE. fer 6 moths with fme of Rs. iOOGf—, RI. for one war years with fine of Rs, 5000i — AL‘l the sentences are directed J THE M. CaS€ Oi A‘ T116 pf0S€Cut101L \. 111 ...~. D1161, 1S that . 011 24~Ze2UUZ ,.._--_": at ¢ Lii‘,,,, K's. 1GGO/’-, R}. far 5 years with 13116 of x with fme of Rs. IOOO/— and R1 for 10 reepech'vely with usuai default ciauses. to run cancuxrentiy. w i-vv ~ ’ ’ / about 10 P.M., {he prosecutr‘lx had gone to the house of her Bhabhi 33W. WW.m L4 i W m . . .§r€:.@:t§‘3:..%1l?l§ m ‘% ......- .................. 31mm WW mw Wmmm i f a? “E W . m gé “g‘ SB: HQN’BLL am urgRMVUKa Mmmm. J. A?FELLAE§T SuShil Kumar MiShra, son of Naripchgxrar ““t‘w“ ’. ’;“”." “AIQ‘hrg 7‘1’“ gaPd‘ . 2Kv ,i vggrq if” uanmrictor, 17o laxlya Occupauo‘n Fwad, Ambikapur, RS. Ambikapur Ko‘twa’xi, Disti. Surguja (C.G.) vge RESPGE§EHT Th‘ Statg of Chhai?i$gar11; thinugh S.H.O. Ambikapur, Disti, Surgm‘a rcfgx i "! 16.0aszu0‘z A~‘ g“ _ Shri Jitemh‘a Shrivastava, Advocat€ for the app€11anL Shri Arum. Sao‘, Adc‘ii. Public Prosacutor for the State. XI—Hc.2g (5* am m m. 2 mm $g$ WWW 2, WW$§W . . Shanti Devi. As it was late i1 the waning, ghe asked the prosecuuix i0 smy for dinner ahd while they were talking in the verandah, axounc‘t 10 p.111. accused Sushil abng with hi3 frienfi Santosh kiiocked the door. They entered in the house. Sushil was homing Chih. Both of them took the prosecutrix on the pretext of some work and thereafter asked her to sit on the motorcycle. and on her refuse}, she was forcibiy made to Stt on the motorcycle and thereafter they took her to the house of S13 shil near Rainanttiganj NaKa and Sushjl confined her in his room anxi forcibly raped her. On her objection, he assaulted her by club and lists on her bajckk hand and leg. :3antosh also threatened her not to lodge report. On the next day of the incident, the prosecutrix along with her mother Phuhnati went to police station, Ambikapur Where report of EX. P—3 was registered. The prosecutrix was sent for medical examination Where ‘Dr. Pratihha Rajul Jain (PWV. 5) examined her and gave report of EX. P—‘2. After completing the investigatic n, charge sheet was filed against the appellant. 4 During trial, in all 8 Witnesses were examined by the prosecution and the learned trial Court relying upon the statement of the prosecutrix and other w:.tnesses namely mother of the prosecutrix hhnlmati (RW. '2), Sunita (l3.W. 3) and Shanti Devi (PW. 4) and Dr. Pratihha Rajul Jain (Ft—W. 5) has convicted the appellant and H sentenced hini as mentioned above. it! 0: me statement oi the pros apparsm mammal alscrepam 1161‘ tourt statement anti FJJ $11e was taken to Ramanu Uetroy, there 1s a soc1ety Wh are nee is custn'butea. 111 tne F,1.F<., me. place 01 mcldent has been mentioned as the house of the accused. The laiiegation is that the prosecutn'x was abducted from a piace Where number ol milabltants resme 111 the nearby, however no aiarm was ralsecl by The prosecuttx at the time 01 moment, :l‘ms renects that the prosecutrix was a Jonsenting party. The prosecutn‘x was a consenting party is aiso estahhshed from the‘fact that she was taken L‘YC1€, 110\V€V€1‘ SHE {11d 110i maK€ arty she cud not. raise alarm on way. The under Section 3‘76(’2}{g) of the TPC for commuting gang rape, however there is 11o evidence available on ecutnx was abducted by more than one commlt rape with the prosecutnx and, rape 1s not made out. 6. 011 the other hand, k that the verston 01 the prose( statement oi mother Riuima Bhabhi Shantidevi (RW. 4) V ,ecutnx and ELK. 01 EX, P—l, mere is :fy’ between me \versmn glven by her 111 i. Betore tne Court she has Claimed that ganj Octroi, beind and Ramanuigani as a 131111011 rider on motor attempt to fiee on way and appellant has been convicted recom to Show that the pros person with an intention to theretore, the offence of gang £ arnect counsel tor the b‘tate contended utrlX (HW. l) 1s duly corroborated by the Li (KW. 2} as also trom the statement oi tronl whose house the prosecutnx was XI»HC-22 3aW, Wm? W C) C‘MA—Qdw‘ V e V / &L{ Wm v1 200 m mm W 611%?! W 3%?! mmmWm W?W 1%"?!W 3 %Wm ‘a. manmd counsel for t‘m: appallan‘t contended that frbm perusai XI-HC-22 taken by the accuSEd and fJ house of Shantidevi at that i corroboraied bx th€ stateme found injuries ova the left ie 7. i hava haard iearned c record of €116 nfial Court as a 8. V‘ The prosecutn‘x (PW. she had gono to the house o iaking their meals, the accu: he caught hold of her hand and forcibiy (il‘agged her upto motorcycie. Heraeked her to accompany mmta {F.W. '3} who was presant in €116 ime. Version of the prosecutrix is further 1t of D1: Prtibha Rajui Jain (RW. 5) Who gofsizeof4x2xlcm. muse} for ‘the parties. i have perused The iso the impugnec‘i judgment. 1) has; stateo that on the date of incident, f her Ehabhi Shantidevi. While they were sed came there. 'He was holding 1afni and him and on refusai, he forcibiy made her to sit on the motorcycle expel took her to Society situated behind Rmannjgahi Gotfoi. He Started aseaulting her and when She trienl to flee from there, the accueed assaulted her by lathi ion her leg, thereafter he took out petrol ahd spread on her body and confined her insitle the room. Thereafter he came after takjhg liquor from outside and forcibly raped her. Through out the night she was weeping. in the next morning at about 8.30 am. he said that now she can go, then she said low she will go as he has broken her leg. After some time, mother came there and took her on a rickshaw and thereafter the report of EX. '3-l was lotlged. She was examined hfy’ ’Dr. Pmtihha Rajul Jain (RW is corroborated by the statenient of 5) in the Government hospital. The statement of this Witness [at Phulmati (RW. 2), Sunita (RW. 3) who was. present in the house oi Shalltidevi from whose house the proseguu‘ix was taken by the accused forcibiv and'her Bhebhi Shaniidevi (RW. 4). RW. '2 Phulmati has stated that The prosecutrix hadgone to file house of her tmabm Shagticievi at 6 PM. She dlcl not remnl in the night, On the next day at about 8 a.n1. accused Susmi called her and aeked her to Lake her daughter, he has beaten he; secutrix has imitated that the accused 3r in the night. The incident occurred in he cross~examination of the prosecutnx ract'er of the hyosecutrix anti her mother customed of taking iiquor and they are t hquor alld theV hat‘t implicated the e to extract. money from him who 1s it has also been suggesteét that the § party as she did not reuse any aJaIm at ? the Witnesses have stuck to tnelr claim :en. The version of the prosecutnx 1s statement of Dr. Pratibha Rajui dam her immediateiy after the incident and s on her 1eft ieg. She has stated that. i was swelhng on her left leg and she was nent of ieft leg was restricted because ot juries, she had recommended A—ray drunken condition. 'l‘ne pro x At that time also, the accusea was m had beaten her and rapeti 111 the society. The ciefence in t has tried to impeach the cha by suggesting that she is a0 engaget‘i in tradihg of 1mm accused in the saitl ottem contractor by protesston. DTOSECHU‘JIX VvaS a C011S€11U11§ the time of incident, howeve. and they remained unsnai further corroborated by the (PW. 5) who has examined Who has found two inJtnie because of the injuries, then compiaining pain and move: ., Wirnrii t seeing the in i i0. Thus, there is sufiicient evidence avaiiahie on iecord for convicting and Sentencing the appehant for the offence under Becnon 323 read with Section '34, 56E B, 366 and 342 read with Section '34 of LPG. However there ie no evidence addnceei by the prosecution to estabheh that the co—accused Santosh whiie assisting the accused in commission of the offence of rape with the prosecntrix aiso snared the common intention to com Lnit rape as there is no evidence against the co—accnsed that before the incident. of abduction, during abduction or subsequent thereto, at any point of time, he had common intention to commit rape with the prosecutriii. in these I XI-HC—22 3aW W. W W @‘A, woVt W /"‘( ' o ‘ 2w ii WW few am mafia m mat “far WW a:W afar; amt wW £7 €Xaminan'on of her 16ft 16g, howwm‘, X—ray repmt has not D6611 axhibimii. Takghg into 0V6 rali evidance avaiiabig on record, the in which the offellce iS aileged to nava 136611 pai¢icu1arlv manna" committed by tho appeliant, D am of {no considered opinion that‘me defencg of the appeiiaiit than the prosecutrix was conSenting pamy ho accopted. The prosocution has ostabiiShod tho mvolvemsnt cannot accopted. of the appeilant in the crime i111 question. 9. lF‘rom the evidence avaii‘abie 0'11 record, it is evident that when the prosecuu‘LX was abducted from the house of Shemtideiii uilder the threat of 1ife, the accused was accompanied by co-aocused Santosh, him 1’11 the proSeciitiiX to his home mid ail who helped fomibiy taijng the three ’perssons went in the motorcycle and co-accused aiso helped the accused iii oonfmmg her 131 a room. CKCHmStallCéS, U16 SubmlSSlOl]. OI m6 l€al11ECI COU11S€1 XOT Ul€ appsiiamt that the appeihnt cannot be convicied for commission of 'offcnC€ punishabie undsr S‘actiou 376(2)(g) of LEG. has to be accepted. 11. 111 the result, m6 appeal premn‘ed by the: appauant is partly auOW€€L Wllile mHH’ITBJJlmg ‘t11€ COllVlCUOD OI t11€ app€ll811t 11l1f161‘ §€CT10DS 325 1‘€a(l “71m 56011011 $4, DUblj, 500 allG 1542 fEaa XVltil Section 34 o" '.P.C. 811(1 the sentences imposed under those sections, appellant’s conv1cuon under section 3/b(2)(g) oi LPL‘. els aiterea to §€CHOD 5 /OU_) OI I.P.U. 811d m6 aFFpELlallt IS SCHtEHC€Cl 10 uflfl€rg0 KJ. tor '/ years wml a one ol Ks. bum); —, moetgutt ol payment or tme, to runner unciergo Rt. for one years. A11 the sentences shan Inn concurrently. ’ ’ Sdl- U mmmsm ‘ Judge A [@W H¥Vij