HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: Coram: Hon'ble Mr.T.P.Sharma & Hon'ble Mr. Rangnath Chandrakar, JJ. APPELLANT . (in Jail) Criminal Appeal No.436 of 2009 Mahesh Satnami s/o. Motichand Satnami, aged about 24 years, r/o. tmliduggu, Naharpara, Korba, District Korba (CG). RESPONDENT APPELLANT (InJail) RESPONDENT Versus State of Chhattisgarh through Police Station Kotwali, DistrictKorba (CG). & Criminal Appeal No. 244 of 2010 Laxmi Prasad son of Gyal Prasad Yadeo, aged 24 years, resident of Imliduggoo, Naharpara, Korba, District Korba(CG). Versus State of Chhattisgarh Through : Police Station Bagicha, District- Jashpur (C.G.) (Criminal Appeals under Section 374(2) of the Cr.P.C.) Mr. Arun Kochar, counsel forthe appellantin Cr.A.No.436/2009 Mr. Yogeshwar Sharma, counsel for the appellant in Cr. A. No. 244/2010. . Mr. D.K. Gwalre, Govt. Advocate and Ms. Madhu Nisha Singh, Panel Lawyer for the respondent/State. Per T.P.Sharma. J.:- JUDGMENT (Deliveredon 12-7 2011) 1.,Since Criminal Appeal No. 436/2009 filed by appellant Mahesh Satnami and Criminal Appeal No. 244/2010 filed by appellant Laxmi Prasad are arising out of common judgmentof conviction and order of ^ -yys l^°s- '<u ^^ sentence dated 7-5-2009 passed by the Second Additional Sessions Judge (F.T.C.), Korba, in Sessions Trial No.21/2007, they are being disposed of by this common judgment. f' 2. By these appeals the appellants have challenged legality and propriety of the judgment of conviction andorder of sentence dated 7-5-2009 passed by the Second Additional Sessions Judge, Korba, whereby and whereunder the learned Additional Sessions Judge, whileacquitting two^. Go-accused persons, after holding the appellants guilty for commission of offence of gang rape, convicted the appellants under Section ?7S (2)(g) ofthe I.P.C. and sentenced them to undergo imprisonment for life and to pay fine of Rs.10000/- each, in default of payment of fine to further undergo R.l. for 15 monthsand out of fine amount, Rs.15,000/- has also been awarded to the prosecutrix as compensation. 3. Convictionls- impugned on the ground that without there being any iota ^ of evidence, the trial Court has convicted and sentenced the appellants as aforementioned and thereby committed illegality. 4. As per case of prosecution, on 30-10-2006 prosecutrix (PW-4) (name^ not mentioned) aged about 16 years had gone with her friend Am^t Khunte (PW/1) for taking tuition in Aisar coaching centre, Korba, and at about 6.30 p.m when they were returning, motorcycle of Amit Khunte became defective, therefore, he called his friend Vijendra by telephone, however, in the mean time 8-10 boys between the age of 18-23 years came there and assaulted Amit Khunte, therefore, Amit Khunte ran away from that place. Thereafter, they caught the prosecutrix, took her towards hill and again took her to Nahar Canal Bridge by motor-cycle and after removing her clothes they committed sexual intercourse with ^ / ^. •]a;rf< fe^;,y^ ks^-' her one by one. They atsp threatened her to kill after commission.of rape and they committed gang rape with her upto 1 1.30 pm and after leaving her near Sarvamangal temple, they fled from there at about 12.30 (0.30 at night). When she crossed the bridge she met one Manoj and took his help. On the next day morning police came and took her to Police Station and lodged Dehati Nalsi Vide Ex.P/5 in which she described the description of miscreants. 5. Panchnama was prepared vide Ex.P/6. Prosecutrix was sent for .. medical examination to Prathmik Chikitsa Kendra, District Korba, vide Ex.P/20, where she was examined by Doctor Swati Sisodia (PW/9) vide Ex.P/15 who found the following injuries;-i) abrasion. over back at right scapula, ii) abrasion over buttocks; iii) abrasion over right breast about 3 cm; iv) labia minora red and inflamed; v) hymen was ruptured, tag near vub/aliSrifice; vi) blood was oozing from vagina; vii) tender vaginal wall with swelling. The Doctor opined that the injuries were simple in nature caused within O to 24 hours by dragging of body to hard sufface and sign of penetration was present. During course of investigation, spot map was prepared by investigating offic&r vide Ex.P/1 and motorcycle was seized from Mahesh vide Ex. P.4. On 4-11-2006 identification parade was conducted by Naib Tahsildar, Sudhir Khalkho (PW/14) where prosecutrix had identified both the appellants along with other accused persons vide Ex.P/9. School-'marksheet (Ex/P/10) of the prosecutrix was seized vide Ex.P/12, wearing apparels of the prosecutrix wornat the time of incident were seized vide Ex.P/11, one tady Hero-cycle was seized from the possession of co-accused Rajesh vide Ex.P/'tS, first information report ^-f^ ^ c^«n«ois' was lodged vide Ex.P/19, seized articles were sent for medical examination vide ExP/32 to FSL Raipur and presence of sperm and semen on underwear of prosecutrix and underwear of appellant Laxmi Prasadwere confirmed vide Ex.P/34. 7. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short 'Code') and after completion of investigation, charge sheet was filed before the Chief Judicial^ Magistrate, Korba, who in turn committed the case to the Court of Sessibns, Korba, from where leamed 2 Additional Sessions Judge, Korba, received the case on transfer for trial. 8. In order to prove the guilt of the accused/appellants, prosecution examined as many as nineteen witnesses. Statements of the accused/appellants were recorded under Section 313 of the Code. where thgy'denied the circumstances appearing against them and pleaded innocence and false implication in crime in question. The appellants have also examined defence witnesses Dhular Sai (DW-1), Manoj Sahu (DW-2) and Santosh (DW-3), who have deposed that at ''\-< the time of incident appellant Mahesh was present with them anc thereby the appellant has taken the plea of a\Vo\. •< 9. After affording an opportunity of hearing to the parties, learned Additional Sessions Judge, while acquitting all the accused persons under Sections 366, 323, 506(2) and Shekhar alias Shekwa and Ajad Singh under Section 376(2)(g) of the IPC, convicted the present appetlants under Section 376(2)(g) of the IPC and sentenced as aforesaid mentioned. ^? 10. We hav& heard Mr. Arun Kochar and Mr. Yogeshwar Sharma, counsel for the appellants and Mr. D.K. Gwalre, Govt. Advocate and Ms. Madhu Nisha Singh, Panel Lawyer for the respondent/State, perused the judgment impugned and record of the trial Court. 11. Learned counsel for the appellants vehemently argued that conviction of the appellants is based on the evidence of PW/4 -prosecutrix especialJ(. relating to identification of the appellants. As per case of prosecution, incident took place at night in dark. It was complete dark ( . '• • ' night and there was no source of light and appellants were not known to the prosecutrix, thus, in these circumstances, identification of the appellants was not possible and even otherwise, as per initial case of prosecution, miscreants kidnapped the prosecutrix near Nahar Canal Bridge, but as per evidence of presecutrix, miscreants kidnapped her near Pande Gallj i.e., from city, which is eontrary to the case of prosecution. As per evidence of PW-1 Amit Khunte, prosecutrix had gone with him towards lonely place at evening time by his motor-cycle which shows that Amit Khunte had committed aforesaid offence with prosecutrix and with a view to save herself and Amif Khunte, prosecutrix had falsely implicated innocent persons in the case. The trial Court while acquitting the co-accused persons, convicted the appellants and sentenced to undergo life imprisonment. Learned counsel further submit that this is case of gang rape by more than eight persons and considering the tender age of fhe appellants, lenient vlew might have been taken by the trial Court while awarding the sentence. 12; On the other hand, leamed State counsel opposed the appeals and argued that this is case ofbrutat gang rape committed by mor^ than 8- 9 persons and they have caused injuries upon breast ofthe prosecutrix and private part of the prosecutrix was badly effected. Prosecutrix has identified the appetlants in identification parade and also in the court which is sufficient for drawing inference that the appellants have committed aforesaid offence and the trial Court has rightly convicted and sentenced the appellants as aforementioned. 13. In order to appreciate the arguments advanced on behalf of the parties? we have examined the evidence adduced on behalf of the parties. 14. In the present case, virtually rape committed with prosecutrix after her kidnap, has not been substantiatly disputed on behalf of the appeltants. Appellants have disputed the evidence relating to identification of the appellants. On the other hand, the aforesaid facts were established by the evidence of PW/4 prosecutrix, medical evidence of Doctor Swati Sisodia (E>W/9)-_and medical report (Ex.P/15) which reveal that injuries were found over back at right side at scapula, buttocks, right breast, hymen was ruptured, swelling in vagina, swelling and redness, labia miridra, bleeding/oozing from vagina which show that intercourse was committed with prosecutrix. Doctor Swati Sisodia (PW/9) has deni'^ the suggestion in para 4 of her cross-examination that the prosecutrix was accustomed to intercourse. She has specifically deposed that first intercourse was committed with prosecutrix within 24 hours of her examination, which shows that brutal rape was committed upon the prosequtrix. 15. As regards complicity of the appellants in the crime in question is. concerned, as per evidence of PW/4 prosecutrix, while she was coming after tuition, she was fordbly taken by two persons by motor-cycle towards hill and again they took her near Nahar Canal Bridge. Present appellant Mahesh was the person who took her by motor-cycle along with other accused persons. Appellants Laxmi Prasad and Mahesh were present on the spot and they took her by motor-cycle and thereafter they took her towards lonely place and after removing her clothes, present appellants Laxmi Prasad and Mahesh along with other 4-5 persons committed sexual intercourse with her and thereafter they took her near canal where they stayed for some time and again 5 accused persons including both the appeltants committed rape with her. At the time of committing rape by last two persons, she became unconscious and when she regained conscious, present appellants were not present and other accused fled away. She came near Sarvamagla temple where one person was present to whom she asked mobile phone an^ informed about the incident to her mother and her mother along with her father came to her, thereafter, they took her to Police Station where Dehati Nalsi was lodged vide Ex. P/5. She was examineid by Doctor Swati Sisodia (PW/9). Prosecutrix further deposed that identification parade was conducted on 4-11-2006 in which she identified both the appeliants vide Ex.P/9. As per evidence of PW/1 Amit Khunte, he went along with prosecutrix towards canal, on account of some probtem in his motor-cycle they were standing at bridge, at that time, 7-8 persons came there and out of 7-8 persons some persons assaulted him and they dragged the prosecutrix towards hill and thereafter he informed to his friend by telephone, who informed about the incident to the parente of the prosecutrix. He went to Police Station along with parents of the prosecutrix and consequently, prosecutrix was recovered. Prosecution has also cross-examined PW/2 Santosh Yadav, who has deposed in his evidence thatappellant Mahesh along with Ajad was standing near canal and appellant was having motor- cycle and after some time when he was going to attend a meeting, he heard that some boys had taken the girl towards Bridge. Evidence of this witness reveals thatpresent appetlant Mahesh was present at the time of incident where prosecutrix wastaken. Evidence of PW/1 Amit Khunte is wetl corroborated by the story of kidnapping of prosecutrix near canal. Defence has cross examined PW/4-prosecutrix at length. She has specifically deposed that all miscreants have committed rape with her. Both the appellants have committed rape twice with her. She had identified both the appellants but she failed to identify two other miscreants in court. She has admitted in para 6 of her evidence that at the second time of rape, the present appellants were amongst five persons who comnrutted rape with her. At that time, there was darkness, therefore, she could not identify the other miscreants apart from these two appetlants. She has denied the suggestion that she had gone with Amit Khunte. She has also denied the suggestion that she was having illicit relation/physical relation with Amit Khunte and she had denied the suggestion that at the time of incident, she had gone with Amit Khunte and appellants have not committed any offence. Factum of physical relation/illicit relation with Amit Khunte or any other person has been negatived by the evidence of Doctbr Swati Sisodia (PW/9) and PW/4- prosecutrix in her evidence, specifically and categorically deposed that present appeltants Mahesh, Laxmi Prasad and other miscreants have committed rape twice with her and they have kidnapped her and at the time of incident she was with the present appellants and other miscreants for near about 5 hours. She had complete opportunity to see the appellants at the ttme of evening and at the time of commission of rape and on the basis of aforesaid opportunity she identified these appellants as the persons committed rape with her and there was no ground to implicate th$ present appellants falsely in the case and even the prosecutrix was not previously known to these appellants. She was kidnapped near imlidug^o (canal) where appellants were staying. FSL report Ex.P/34 also cor(0i?orates the commission of rape by appellants Mahesh and Laxmi Pr^^J. PW/4 prosecutrix has not supported the version of the prosecution relating to her kidnap near Imliduggo eanal in court. She has also not supported initial version of prosecution relating to her visit with Amit Khunte to that place to whom she was previously known. It appears that with a view to conceal her intimacy with PW/1 Arhit Khunte, she has not supported the aforesaid facts, which does not discredit her evidence relating to commission of rape and kidnap. On the ground of aforesaid commission or contradiction, her entire evidence cannot be discarded. t-1er evidence is well corroborated by the evidence of PW/14 Sudhir Khalkho who has conducted identification parade vide Ex. P/9 before whom she identified the appellants, Dehati Nalsi vide Ex.P/5, medical evidence of DoctorSwati Sisodia and medical report vide Ex.P/15.. Defence has examined DW/1 - Dula Sai, DW/2, Manoj Sahu and DW/3 Santosh who have deposed that qnly on 30-10-2006 between 6.00 pm to 10.30 p.m. Mahesh was present with them but they have deposed in their cross examination that on 30-10-2006 Chhatti function was solemnized la "s/^ '<'-..-(?^ t-<""' fl 10 between 6 pm to 10 pm and they were not present till last moment which shows that they only deposed with a view to save appellant Mahesh. The evidence of PW/4 prosecutrix was corroborated by medical evidence of Doctor Swati Sisodia (PW/9) vide Ex.P/15, which shows that the appellants have committed rape twice with her without her consent. 16. After appreciating the evidence available on record, learned Additional Sessions Judge, has convicted and sentenced the appellant as aforesaid mentioned. 17. As regards the conviction of the appellants is concerned, the age 6f appellants was near about 24 years and they have committed brutal rape with prosecutrix at night in lonely place and injuries found over the body of prosecutrix showthe brutality ofthe act of the appellants. 18. On a close scrutiny of the evidence and considering the aforesaid circumstances, present appellants do not deserve for any kind of sympathy and lenient view for reduction of sentence. This is a case of brutal gang rape committed by the appellants with the prosecutrix. We do not find any illegality or infirmity in the judgment impugned warranting any interference. Consequently, the appeals being devoid of merit are liable to be dismissed and are hereby dismissed. -Sd/- T.P.S'narm Judge Sd/- R.N. Chandrakar Judge Raju