HIGH COURT OF CHHATTISGARH AT BILASPUR CR.A. N0. 1230/2003 APPELLANT8 RESPONDENT SB : Hon'ble Mr. T.P. Sharasaa, J. 1. 2. Versus CTiliotii @ Siiresb, Son of RaninatJi Siiigh, aged about 19 years, r/o, Kapoor singh Datai Minse Quarter No. 17, Chlioti Dazar, Chixmiri, P.S. Chinmri, Distt. Koria (CG) Raju @ Rajendrai Singb, S/o. Cliiliotelal Siagh, aged about 19 years, r/o. Kapoor Siagh, Dafai Miaes, Quarter No. 19, Chhoti Basar, Chimiiri, P.S.Chirmiri, Distt. Koria (CG) State of 00, thrmigli P.S. SC/ST Kalyaii, Thaaa Asiibikapur, Distt. Surguja (CG) 'SF- APPEAL UNDER SECTION 374(21 OF THB CR.P.C. Present: Shri Abhay Tiwari, coiinsel for the appellants. Sliri Paakaj Shrivastava, Panel lawyer for fiie State, ORALQRDER (Passcd on 5thAugust, 2008) By tliis appeal iinder Section 374 (2), Cr.P.C. tTie appellants liiave cTiiallenged the legality and propriely of the conviction anril sentence passed by Special iJudge, Amhikapiir iin jurilgTnent dated 11.7.2003 in Special ST No. 340/2001 whereby learned Special Jiidge 1ias after holriing t.he appeltents giiilty for the offence punisltiahle iinder Sections 450, 506 and 376(2)(g) of t.he Tndian Penal Code sentenced them to undergo Rigoroiis TTnprisonYnent for two years and fine ofRs. 1,000/-/ in default of payment of fine to furt^er undergo Rigorous ImprisonmeTit for one montl^, sentenced to iindergo RT for six mont.Tis and fine ofRs. 500/- in defaiilt of payment of fine to fiirt^er undergo Rigorous Tmprisonment for 15 days and sentenced tn undergo Rigorous TtnprisonmeTit for ten years and to pay fine of R. 5,000/-, in defaiilt of paymient of finie to fiirt}ier iindergo Rigoroiis TTnprisonmeTit for five inonths, respectively. 1^_ K-S5S5t&fiSw^^=:.i£,;s^ -^- S-3'' 2. thidgmeTit of conviction is cTiallenged on tTie groiind tTiat withoiit any reliable and clinching evidence, tTie trial Court has convicted and sentenced tliie appellants as aforementioned. 3. Heard counsel for t.Tie parties. ?f. Tt. is argiied on belialf of tTie appellants tliiat according to the case of prosection, appellants along witlti two otTier persons entered into tTie hoiise of tTie proseciitrix/coTnplainanf Ram Rai anid coTnniitted forcefiil rape with her in presence of Tier motTier-in-law PTiool Bai and otlier lady STianti Rai. STie narrated the stoTy to her Tiusband in presence ofP.W.-3 Mohan T^al STiarma and otliiers biit the proseciition has not examined the most iTnporfcant Tnaterial witnesses Phool Bai and •STianti Bai. Howeven Mohan T^al Sharma Tias not siipported tl^e case ofproseciition. She w^s raped by foiir persons hiit. no mjiiry over tlie hody or intemal part was foiind in medical examination. The victirn is aged aboiit 30 years and tTie appellants are aged aboiit 19 years. It is also not possihle to coTnTnit r^ipe wifh a lady wTio is ten years older than tlie appellants. 45. On t.Tie otTier l^and, jiiidgTnent is siipported on beTi^lf of the responderiit According t.o the proseciition, on the fatefiil day of 15.7.2001, at ahout 10.20-11.00 p.Tn., in tTie niigTit, proseciitrix P.W.-1 Rani Bai was sleeping at her house along with Tier cTindren aged about. 6, 10 and one year. At that tinie, her tiiisband Heera T^al went tn Master STiarma. Her motTier-in-law was in tTie verandah, on hearing t.1^e harking ofdogs, she t.hoiigTit tTiat ber hiisband Tias come and Tier TnotTier-ini-lfliw opened tTie door and saw that accused/appellants naTnely CTthotii, Rajii, Riyaz and one more person wlioni she did not identily entered into the hoiise, acciised Riyax sat near lier Tnotlier in l?3w wift knife and was tTireatening to ki1l tTie cliildren. Thereflifter Rajii, CTihofrii and Riyaz came and they caught her. Tliey removed lier sari and took into tlie room ofStianti Bai and coTnniitted rape on her. After commission of the offence, tliey escaped from tJhe spot. Slie inimeriiately nistied to tlie tiouse of P.W.-3 ^, -2r- Mohan T^al STiarma and narrated tTie storv to 1^er Ihiishand Heera T^l. Tliere^fiter, she lodged the report 3t police stetion Chirmiri vide Ex. P-1 on 16.7<2001 at ahoiit 9.30 a.m. STie was examined by Dr. Nirmala Yadav Rolian P.W.-7 and s^e opined tTiat she is accustomed to sexiial intercourse. Two slides were prepared from tlie vaginal discharge and sealed. The report is Ex. P-9. TTie appellant.s were also token into ciistody and tTiey were exaTninied by Dr. Ramesliwar Sharma (P.W~6LThey were foiind competent for intercoiirse. Msap was prepared. TTie articles were seized and sent for exaTninationi. The case was transferred to speciRl police station SC/ST (Prevention of Atrocities Act) Ainbikapur where FTR iinder Ex.P-5 w^s recorderi. After investigation^ cliarge sTieet was filed in tlie Court of Cliief Jiidicipl Magistrate, Raikiintftpiir who in t.Tim comimit.t.ed tJhe case to tTie Special ihidge, Amhikapiir. 7. Tn onler t.o estahlisTi tTie giiilt of tlie appellants^ proseciition Tias examined as maniy as nine witrsesses. Statement of the appellants were also recorded iinder Section 313 oftlie Cr.P.0. in wMch tTiey denied tlie circiitnstnnces appearing against. ttiem and steted that ttiey Tiave heen felsely iTnplicated in tTie crime in qiiestion. 8. After aflbrding opportiinity of hearing to the parties, leamed Special thidge^ convicted and sentenced tl^e acciised/appellanits as aforeTnentioned, 9. Tt. i»not disputed tliat the victirn Rani Bm is aged about 30 years. Tn onler to establisTi the case of oflfence of rape ^ig^inst t.Tie appellant.s, proseciition is reqiiired to prove the essential ingredients t.1Tiat appellants have comtnitted sexii^l intercoiirse with Rani Bai against Tier will and coTisent. Proseciition Tias flirildiiced t1ie ociilar and medical evidence evidence. 10. P.W.-1 Ram Bai Ttias steted tTiat on tlie date of mcident at ahoiit 10.30-11.00 p.ni. slie a1ong with ^ner ctiildren and Tnother-in-tew were sleleping in lier Tioiise. Her Tiiiishsnd Heera lalwas not in t^e hoiise. Her mot^er"-in-law was in ftie verandali wTtiere sTie Tieard t^e barking ofdogs -t< (® and tMnking that Tier liusband tias corne. Her niot.Tier-in-law opened tlie door and saw the appellRnte. They entered into the hoiise. Absconding ^ppellant. Tiamely Riya% was T^oldi^g knife. He sat. near Tier mot^er-in-law and t^ireatened her that he will kill the cTiildren. TTien they came to the victitn and aft.er tlireating t.Tie victini, compelled Tier for sexiial intercoiirse. Tl^e appellants removed her sari and coniTnitt.ed int.ercoiirse wifh Tier against. her wil1 and consent At tliat. tinie STianti Bm was in tTiie room. STie did not come for Tielp. Slie Mde Tiierself. All tlie four accused persons tlireatened tl^e victim and coTnTnitted sex^ial intercoiirse witTii Tier and escaped from there. Then sTie went to tliie ^oiise. of Mohan T^l STiarma wliere Tier l^iisband w^as present, narrated him aboiit tT)e incident and t^ereafter, lodged tTie report vide Ex.P-1. S^ie was ex^mined by Dr. Nirmala Yadav Rohan. Her petticoat was seized. Map was prepared. Broken bangleswere seiz/ed from tTie spot. 11. P.W.-2 Heeralal is tlie hushand of coinplainant Ram Bai wTio ^ias steted tliat OTI the date of incident, T^e was in ttie Tionse of Molian Lal STiarma. At ahoiit. 11.15 p.m. his wife Ram Rai canie to Tiim and told tTiat accused/appellants coniniitt.ed r^pe witl^ Tier and sTie stert.ed weepiing.At. tTiat tinie Motian T^al Sliarmai and STiyam T^al were present. Then slie went.to police stMionwit.h Tier Tiushanid and lodged Rx. P-1. 12. P.W.-3 MoTian lal Sharma Tias deposed tTiat on tTie date ofinciderst^ at ahout 11.15 p.m. wife ofHeeral T^a1 came to his lioiise, narrated firhout the incident and stairted weeping saying tTiat your are watcMng inovie and soTne gaondajs entered in the Tioiise aniyhow slie saved herself. He Iias also steted tliiat Ram Bai Tias not steted anytMTig relating to rape but if she wonld Tiave said relating to r?3pe to Tiier ^iishanril^ then lie do not know. She Tias steted tl^at goondajs removed Tier sari. STie was examined by tTie doctor wlio Tias steted tliat she was acciistonied t.o sexiial intercoiirse and slie foiind no injiiry over tbe body or private part of tJhe victim. Her report. is Rx. P-9. TTie acciised persons were also examined hy Dr. Rameshwar Sharma P.W.-6, and opined vide report Ex.P-7 ftr, 8 tTiat tTiey are competent to comTnit initercoiirse. --?- 13. TTie articles were seized and sent for cTieinical examination hut no report. was prodiiced hy the proseciition. Definitely, proseciition Tias not exainined tTie inotl^er-in-law of Ram Bai i.e. PTiool Bai and also STianti Rai wlio were present in tTie same vicinity at t^ie tiiTie of coTnmissioTii of ihe ofFence. Tt is siihniitted on behalf oftTie appellant tlTiat they were tTie eyewitnesses and their non-examination is fetel to t^e proseciition. According to tlie stetenient ofRam Bai, her Tnotliier in lf5W PTiool Bai was sitting in tlie verandai^. She was tl^reaitened hy tTie ahsconding ^ppeltent Riyaz witTi knife. STianiti Bal hide herself near Pliool Rai. TTiey Tiave not seen t^e incident. hiit. they were preseTitwhen tliie appellants entereril into fhe hoiise. The victim is a Tnarried lady acciistoTned to intercoiirse. 14. P.W.-2 Heera l^al Tias supported t-Tie version of tlie complainaTiit. P.W.-3 Mol^an T^al Tias supportfsd t^he case of prosecution npto t^ie extent. tTiat the victiTn came to Tiis house at abo^it. 11.15 p.m. and started weeping and told her Tnishand tliat some goonj^a^ entered ini t^e Tioiise and slie fried to save liierselfand a1so tTiat t1^at tliey removed Iiier sari. He also steted that ifRani Rai has narrated tTie stoTy ofrape t.o Ttier hiisbarid tTien it is not. known to Tiim. At. tTie time of incident, some personis entered into tTie Tioiise of the victitm. TTie story is siipporfed by P.W.-3 MoTian T^l jiist after tTie incident TTie victim narr^ted t.o Tier Tiushand wTio wfiis in tlie Tioiise of Mohan T^al and tTiey reported tlie matter to tTie police. 15. TTie appellants Tiave teken tTie defence tTiat either tliis is ^ case of consent or tlie proseciition has failed to prove tlie case against t.Tie appellant. T1^ey liave not taken any specific defence biit tliey h^ve said in fheir stetement. tTiat t.Tiey Tiave been implicated falsely on the groiind of animosity hiit nothing Tiias been siiggested by tlie defence relat.in g to enTnity or false implication. Proseciition had not exRtnined the motTier-in- law of tTie complainant, Phool Bai and sliaYity Bai who were present in tlie house. But accordinig to tlie statenient oftTie coinplainant Ram Bm, Pliool Bai was sitting in tl^e verandati and slianty Rai Tiad Tiidden herself near PTiool Bai at verandab. TTierefore^ tliey were not. at the place of incident TTie corroboration oftlie stMeTnent of complainant is not always necess^ry. Tt is a nile of caiition. Appellante Tiave not addiiced fliny evidence or cfiiste any doiibt on tTie stoTy of the prosecution that on the groiind of enmily tTiey li-ave heen falsely iTnplicateril in the crtme. Withoiit any suhstential materiaL it is not possihle to iiTtfer that a lady woiild rnake felse allegations against. t.heni with a risk of her fiitiire. The coniplfliinant is a married woni^n aged aboiit 30 years 1'iaving thi'ee diiildren aged aboiit 10 years, six years arsd one yesr. She i^ acciistomed to intercourse. The appellant.s Tiave not iised tTie force of evidence in coTnTnissioTii oftlie oflTence. Absence of injury over the body and private part of tlie victim is not. fatal to ttie proseciition. Ttie fact of entering of the appellants in the house of Rani Bai is siipported by P.W.-3 Motian T^al and P.W.-2 Heera Lal. FIR was lodged promptly vide Rx.P-1 in wMcTi she ha^ narrated tT^e incident and named the appellants. NotTiing has been siiggested by the appellants to tTie complainant. that she w^s a consentinig party. TTie stetement oftTie appellants mspire coTifirience and reliance c^n he placed safely on tTie stateTnent. of tT^e appellants. After appreciat.mg tTie evidence Rvailable on record, le^med trial Coiirt has arrived at tlie concliision tliat tlie appellant has committedl sexiial initerconrse against Tier will and consent. The finding oftTtie trial Court is based on reliable and cliniching evidence. 16. P.W.-1 Rani Bai Tias steted tT^at appellants entered into the Tiioiise on the point ofknife and committed rape with Tier. Tt is also steted tliat appellant tJire^tened Tiier and tier TnotTiier ini tew to kill t^ieir cTiildren and on the basis of thrept they committed rape witTi Tier. Tt clearty esteblish that appellants Tiad committed criTninal trespass witJh intent to cotnTnit ttie oflFence piinisTiable with rigoroiis iTnprisonment for life aritd also intiniidat.ing to kill tTie persons. The act of tlie appellants also sqiiarely falls under SectioTi 450 and 506-B oftbe Tndi^rs Penal Code. 17. T.eamed trial Coiirt Tias convicted tlie appellants for tlhe oflFence punisliable under Sections 450, 506 and 376(2)(g) of the Tndian Penal Code and senteTticed to tindergo RT for two years and fine of Rs. 1,000/-, in default of payment of fine to fiirtTier undergo RT for one inorsth, sentenced to undergo RT for six inonths and fine ofRs. 500/-, in default " ^O') of payment of fine to fiirtlier undergo RI for 15 days anri sentenced to undergo RT for ten years and to pay fine of R. 5,000/-, in rlRfault of payment. offine to fiirther undergo RT for five months, respecfrivety. 18. Tlie trial Coiirt. tias not coTnmittjed any illegalily or irregiilarity in convicting and sentencing the appellants. C^Tisequently, the appeal being devoid ofmerits is liahle to he dismissed and is herehy dismissed. Sd/- T.P.Sharma Judge ^-