Posi- f'w m’onouncemenf 6f iudqmen'r on g; August 2008 Sdl— 7"» R T. P. Sharma Judge 9$w$ ‘ HmH COUQT a? CHHATTis‘éAaH EILAS§Ui2 Criminal Anneal Na.967 af 2003 APPELLANT: ‘ Devshar'an L I Versus RESPONDENT: W 5mm of Chhmisgarh AND T APPELLANT: Criminal Apnea: No.9?5 of zoos \ Tamn singh Mambi V f Versus x. ‘ H ; ‘RESPONDENT: sure of Chaam‘sgarh £ Hi5“ CQLIéQT (3F CHHA‘VfESé‘ARH, BRASRm Criminai Apneai N036? cf 2003 APPELLANT: Devsharan, 5/0 Ramav‘rar Sinqh, aged abou‘l‘ \J.“ [Tu JQH} A:l\ 23 yams, Occupafior! Agr§eui?ur-e, R/a Viiiaqe Podiya, P.S. Ambikapur, Dehai Dis??. Surgaja ((3.5%) Versus RESWDNDENT: ‘STai-e of Chhaffisqarh. AND V f Crimim! Aygeal Na.975 af 2093 APPELLANT: Taran Singh Marabi, S/a Sunder Singh (In Jafa) Mara’a'i, aged 33 years, Rfc- Vii§age iDadipc, P.5‘ Ambikapur (Viiiagej! Dis??. farguja n Ir r \ w-J-i Versus RESPONDENT: Sfa‘re of Chhaffisgarh, Through 5.0. Poiice 5mf§mw Ambik‘ipur- {V§Hage). Wesewf: Mr. Neemj Me‘h‘ra! 'counsel far fhe appellam‘ in Cr.A.No.967/2003. Mr. V‘K. Pandey, counsei for fhe appellan‘? in Cr.A.No.?75/2003 Mn V§nod Tekam, Pane} Lawyer for The Sfa‘re/respondenf. (Criminai appecis under Sec‘rion 374 (2) of The Code of Criminal Procedure, 1973) Single Bench: Honfbie Mr. 1P. Sharma 3' 3’UD$MENT (Passea' on Q8 August 2008) 1 1. Cr.A.No,967/2003 fiied by Devsharan and Cr.A.Noo975/ZOO3 fiied by Tartan 9 .‘ Singh Marabi have been preferred agoinsf The same judgmem dafed 7-8-2003 passed in Sessions Trial No‘15é/ZOO3, fherefore, fhey are being disposed of by 1 fhis common judgment M 2‘ E‘nese appeais are directed agains‘r fhe Judgmen‘r of convicfion and order of sentence dated 7-$-2003 passed byihe 15’ Acidiféonai Sessions Judge; Ambikqaur in Sess§ons Trial NoA156/2OOS, whereby & whereunder iearned Addifionai Sessions Juvjge affer‘ hmding The accuse&/appeilan?s along wifh fwo o‘rher co- accused persons guil'hj for kidnapping, abdue?ing cmd commiffing gang rape on The prosecu?rix, comm-ed each of ‘fhem uncier Sec‘iions 363 read wHh Secfion 34, 366 read wifh Secfion 34 & 376 (2) (g) of ‘I'he I.P.C., mo semenced +o undergo r$lgbrous imprisonmen? for seven years 61 pay a fine of Rs.1,00G/—, in defouif of paymem‘ of fiee +0 'Fura‘her undergo r§gorous imprisonment for six monfhs under e Secfions 363 read wi'rh Secfion 34 & 366 read wifh See‘non 34 of fhe I.P.C., and +0 umiergo rigorous imprisonmenf for 's'en years 53¢ pay a fine of RsléIOOO/n in defoui‘i‘ of oaymem‘ of fine 1‘0 fur’ri’ier undergo rigorous imprisonment for one year under Secfion 376 (2) (g) of fhe I.P.C. r ; 3. The impugned judgmenf is choiienged on fine ground fhaf wifhouf any credibie evidence againsi the appeiian'rs for kidnapoingr abducfing and commiffing gang rape on fne prosecu'i'rix, fhe friai Cour? has convicied and seni‘enced ihe appeiianfs and ofher canacoused persons as aforemen‘iioned. 4 I1- is informed by fhe Regisi'ry firm? co-aocused persons Krishna Singh & Suresh Markam had nof yreferred any apoeai against ‘ihe impugned Judgment I have heard learned counsei for fhe par‘i'ies and yerused fhe impugned Judgmen‘.‘ as also 'i‘he record of fhe ‘i'riai Courf. r Case of fhe proseouiion, in brief, is fha'r fhe prosecufrix (PW~1), who was aged about 18 years on ‘i‘he da‘ie of incideni‘, was residing in her maiernai house a? Viiiage Padiya, Dis‘ii'. Ambikapur, on 3—3—2003 a’r abouf 10 am. af’rer faking dinner, she came au‘r‘of her house fo answer fhe caii of nafure, of tha‘i‘ Time, Tar-an 60nd aioryg wifh ofher 8-10 persons came fo her and forcefuiiy ’rocak her Towards Sarna: when sha fried To raise cries; fhey closed her moufh bv hand. The appeHams and ai’i ofher eta—accused gersons commif‘fed forcefui sexuai im‘ercourse en her. She became unconscious, ‘Fhen ”they escaped from The spot when she regaineci consciousness! sine fried 'I'o go fowords her house, buf she go? sfray and reached Thodi. She was iired, Therefore, she sieved a? The wheo‘f fieid. On 23-3-2003 in ihe mor‘ninq hours, she wenf +0 Viiiage Biiari in ihe house “oi one aid iady who provided meais To her. AT abouT 3 p.m. her broTher—ih—iaw Arjun & one Mohariai came To her! she narraTed The incidenT To Them and she came wiTh her boTher-in—iaw To her parenTs‘ house where she narraTed The incidenT To her moTher & fm‘her. She was Tired and suffering from body phins. When she did noT came To her house, on 5-3-2003, her broTher-in-iow Arjun \ iodged reporT To Poiice vide EXP-o ThereafTer, she iodged The firs? informaTion reporT vide EXP-1 on 5-3~2003 aT abou? 9.20 pm. Her peTTicoaT was seized vide EXP-2. AfTer Taking consenT from her d1 her moTher vide EXP-3, she was senT for medical examinoTion vide EXP-4A and she was examined by Dr. Mrs. ShakunTaia Xaixo (PW-7) vide EXP-4. ma Mrs. ShakunToia Xolxo (PW-7) noTiced one abrasion on posTer-ior aspecT of 4‘ righT elbow 1 cm. above eibow joinT of abouT 1 cm. x é- cm. size and one abrasion on posTerior aspecT of ief? eTbow 1 cm. media! To eibow joinT of abouT 1 cm. x af- cm. size. On inTernai exominaTion one iineor abrasion of 1 cm. x 1 cm. size was presenT on righ'i' labia majora abouT 2 cms. above fourchTTe. Hymen oid rupTured. One Tear oT 10 0‘ ciock posiTion was presenT on The hymen of abouT 1 x 1 mm. One large Tear was presenT in gosT vaginai waii of 4 ems. in iengTh, 1 cm. in breadTh and % cm. in depTh. No acTive bieeding was DresenT. Bleeds on Touch. The iniuries were caused in)! hard & biunT abject They bieed on Touch and Tenderness. Vagina , a f x ‘ O i l l ‘ V i l admi‘rs Mo fingers. Tenderness present Siides of vagina} smear- prepared gnd sen? 'For chemicai examincn‘ion. The docfor- has opined fhaf There was possibilify of forceful sexual infercourse wifh 'rhe prosecmrix. 8. The prosecufrix waswadmi‘r'red 1'0 fhe hospi‘ral for The examinafion. Her pefficoaf was examined by Dr. Mrs. Snakunfaia Xqixo (PW—7) vide EXP-5 who found fhaf :brown shins were found on ‘i’he pefficoaf some was sealed for chemical lexeminafion. Spa? mop was prepared by fhe Invesligaflrrg Officer vide EXP-8. 53;? map was prepared by “(he Paiwori vide EXP-9. Slides of sealed packe‘is prepared affe‘r examinafion of ioriva‘re paris of ilae prosecu‘lrix were seized vide ExJxlO. w i) 9. Accused/appellanf Taran Singh Mar-obi was also senf‘for medical examinafion vide EXP-20, he was examined by ‘l-he docior vicie EXP-20A and found capable of commi'l-‘l‘ing infercourse. Accused/appellanf Devsharan was also examined vide EXP-18A and he was also found capable of commiffing inlercourse. Of‘ner accused persons were also examined by fhe doc'l'or and fhey were also found fi'r for commi'lfing infer-course. Undergarmen‘ls of accused Suresla Ram Markarn, Dev ‘ Kumar Singh, Mahipal Singh! Taran Singlw d1 Krishna Singh were seized vide l seizare memos Exs‘P—llg 12; 13! 14 (Si l5; respecfively and iheir clofhes were l examined by The doc‘ior. Copy of a‘lne FIR. was sent vide. EXP-28. The accused 1 persons were arresfed vide Exs‘P-ZQ +0 P-34. Seized ar‘l'icles were ‘senf for l chemical examina‘l'ion fo The F.S.L., Raipur vlde EXP-35. IOI Sfa‘iemenfsunder Sec'lion 161 of fhe Cr.P.C. were recorded and offer linvesflgafion charge shee‘i was filed before fhe Chief Judicial Magisfrate, l Ambikapur! who in Turn, commifl'ed fhe case fo fine Courf of Sessions Judge! i ll i ll H x a: Ambikapur, from where learned 15+ Addifional Sessians Judge; Ambikapur, received The case on Transfer for ‘h‘ial. 11, In order To prove fhe guii‘r cf ‘i'he accused yer-sons, ’rhe prosecu’rion has examined ‘ nine wifnasses. Sh‘remewfs af ‘rhe present apaeilan'rs and when” co-accused were ‘ recorded under Secfion 313 of ‘rhe Cr.P,C. in which They denied fhe circumsfances ‘ appearing againef them, pieaded i”nnocence and ‘faise impiigafion. Defence has aiso examined ‘rheir wifnesses nameiy, Saniosh (DW-l) & Jaidhari Ram (DW—Z) in i‘is i sugport Sdniosh {DW-l) who is husband of 'ihe prosecufrix has sfai'ed in his evidence e fha‘ihiswife was residing in her ma'ier'nal 7 . home since 7 last 4-5 years and on 3-3—2003 sine was noi- wii'h him. Jaidhari Ram (DW-Z) has sia‘ied in” his evidence ‘iha? he knows aii fhe accused personsgbui' he did nof know who has ’ repor’red againsi‘ fhe accused persons, he has aiso sfai‘ed Thai Arjun is his rivai. k 12‘ AfTer af§ording oibpor‘iuniTy of hearing To The parties, iearned AddiTionai ) Sessions Judge conv'ic‘ied and sen‘ienced The appeiian‘is and oTher accused persons as aforemen'rioned. 13. IT is argued on behaif of The presen‘i apyeiian'rs nameiy, Devsharan & Taran Singh Marabi Thai The prosecu‘i‘rix, has noT named agapeiiani‘ Devsharan! she was. noT known To Devsiaaran prior To The inciden'i and no Tesi' idenTificaTion gar-ode has been conducTed To idenTify The accused cersons. The F.I.R. was iodged afTer Two days of The incidenT and The deiay has noT been expiained. The prosecuTrix i sTayed for some Time in The house of one oid iady, buT The prosecuTion has noT examined The said oid iady. No posiTive sign of inTercourse has been found on her privaTe parTs. The sTaTemenTs of The wiTnesses are fuii of conTradicTions and \ omissions and do noT insyire confidence, Their evidence is noT TrusTworThy. ‘ ’ §W yu " ** ‘“ m“ " 14. Reiiance has iuzen placed by iearned‘ counsel appearing for fine appeiianfs in ‘rhe ma??gr gf Ngmvga @ Nygn \J: 51:63 9‘? 9%aghgyg1 in whim thz Apgx Cmr? has heid ?ha‘r +§1ere are. maferiaé camradicfians in fhe fesfimony of The prosecutrix relafingr To prove commission of mp6, no‘r geh‘ing down from The - fracfor on ifs way Through many viiiages si‘i‘iing happily in fhg Trader, absence of j injury on her body or priva‘re paris, absence of non-examina‘rion of a iady in whose house she siepf on The {awful day are maierial confradiéfions and discredi‘i her *e ‘f = iesfimqny. w v t 15. Fuig’r‘ner reiianv‘ce has been piaced' by iearned counsei for fhe appeiiam’s in The matter of $an§oy 9othok v. $foto of LE? in whioh i+. has been held by ihis Courf thm‘ absence of injury over body or priva‘re par‘is in case of gong rape and ihereaf‘fer! hisi'ory of beafing by c ub and dragging! and aiso admission of sexuai reiafionship wiih one appeilani disprove ‘ihe commission of gang rape. lo. Further reliance has been pinged in. ‘l'he mai‘ier of Modon Lo! v; $m’3’e of 9&3 in which i'i has been held lha‘l' sfory of repealed infercourse is suggestive of consem". ‘ i7. Furfher reliance has been placed in fhe mai‘rer of Ramdas and o'i'hers v‘ smfe of i‘Aahoroshtro" in whieh it? has been held tho? mere delay in lodging the F‘IR: is nof necessarily fa‘ial +o ihe case of ihe prosecufion. However! fhe fac‘i' ihaf ihe repor‘i was lodged belafedly is a relevan? fac‘i of which fhe Couri- musf fake no'l'ice, huf i'l‘ requires good explanai'ion. Ii' is also held Thai “The conviction in a case of rope can be based solely on The TesTimony of The prosecuTrix, buT ThaT can be clone in a case where The courT is convinced abouT The TruThfulness of The G: 2007 CriLJ. 2733 l ZzooeaweeJem l i 3 2607(1)C.e.i;.5.435 l ‘* AIQ. ZOQ7 3C 155 prosewfr-ix and #her'e exis’r no circumsfances which casf a shadow cf doubf over- her‘ veraci‘l'y. If fhe evidence af the prasecufrix is of such qualiw fha‘l‘ may be sufficiem‘ 1-0 susfain cm order of convicfion soieiy on The basis of her fesfimony. In the ins'mn‘l- case we do n01- find her evidence 1'0 be of such qgaiify". ‘Pr‘osecufr-ix nof appearing To be wiiness of sTer‘iing quaiify on whose soie fiesi'imony conviction can be based! i‘hen accused are enfified for- benefif of idoubt. ‘ 18. Fur-#her reiiance has been piaced by iearned counsei appearing for fhe appeiian’rs in fhe mm‘Ter‘of Predeep Kumor ; Union Aominisimnon, £hondiggrh5 in whioh if hés been hei‘é by *‘qe Apex Cour? f'nai" in fhe case of 6on9 rape - Common In‘fen‘rion - Mere presence of Gppeiianf—occused af spo‘l' is insufficien‘i' ‘io show iha‘i fhere was prior cancer? or meeting of mind or pian formed of fime of commission of offence by him wi‘rh ofher accused persons for commission of rape on prosecufrix - Appeiionf—occused hence enfi‘iied To benefiT of doubT. i; 19. Learned counsel for The appeiianTs aiso piaced reliance in The maTTer of Diiip and anofher vi $ToTe of MRS in which The Apex, CoorT h‘eid ThaT narration of incidenT by prosecuTrix - ConTradicTed by sTaTemenT of her aunT To whom she had narraTed The sTory of sexuai assauiT’4 And aiso by medical evidence and reporT of forensic science iaboraTory - TruThfuiness of version of prosecuTrix being 1 doubTfui, cannoT be reiied upon - Accused enTiTied To acquiTTai. 5 m1: 2006 sc 2992 6 Alia gool so 3049 i i . In order To connecT The appeiian’rs wiTh The crime in quesTi‘on, The prosecuTion has ied ocuior, documenTary & medicai evidence reiaTing To kidnap di abducTion of The prosecuTrix and commission of inTercourse by The appeiianTs aiong wiTh oTher co— i y accused; who had no? preferred any appeai, againsf fhe consen‘r and wiii of fhe prosecufr‘ix. .En order +0 apprecia'l-e ‘ihe confen‘lion of ‘lhe parfies, I have examined The evidence ad'duced on behaif of fhe prosecufion. The prosecufrix (PW-1) is a married iady and her- age has been ascer’rained by fhe Cour‘l‘ as 18 year's on fhe date of her evidence daied' 7*7-2003. The dafe of inf-idem was 3-3—2093‘ The prosecui'ion has no‘i adduced evidence reiai‘ing fa her age fhai‘ an ‘ihe dafe of cammission of effence she was beiow ihe age of 18 year-s and aiso beiow fi’ie age oi 16 year's. The prosecufr'ix is a married lady and when she was wifh her husband for some Time, she is accusfomed fo infercour-se. She has sfm‘ed in her evidence ihaf on The dafe of incidem a? aboui 349 pm. when she came ouf from her house a1- Viiiage Padipa To answer The ca” of nafure in fhe courtyard, fhe accused persons who were hidden in ehe courfyard suddenly came and caughi hold of her. Co-accused 5uresh pressed her mom-h and an The accused persons fook her To Sarna Dand where They Threw her on ‘i'he ground. Appeiian? Taran forn her underwear and commified rune on her. Thereaffer, co-accused Suresh & Krishna commi‘ifed rape on her one by one and appeiianf Devsharan cammiffed rape on her. Thereaffer! co—accused Mahipai & Devkumar aommiffed rape on her. She has snecifieaiiy sfa‘ied +ha‘i ihe apneilan‘is and co—accused persons have commiffed rape on her one by'one. A? fhe ’rime of commission of offence oi‘her co-accused persons used 1-0 cafch hold of her hands 1‘0 facilifafe fhe infercourse. Lasi‘ly she became unconscious, when she regained consciousness she was in i-he Tieid of wheaT. She was having pain. She lefT from The whea‘l' field and reached fa Village Bilori where persons of ihe vicinify enquired about her whereupon she : ‘ sTarTed weeping and The peopée sa§d ThaT she is hungry, Therefore, she is weeping. One old lady fook her é-o her house and provided food To her. Mohanlal of her aw, ; Viiiage Pudipa was a? Viiiage Biiar‘i 1'0 invife fheir‘ reiafives, he heard' ‘fhm‘ one mad woman came from Viiiege Padépa, Then he said fha? one woman is missing from his 1viiiage! fhereaf'i'erg he came in her. Affer somg iime, her broi‘her-in-iaw Anjun ‘came aiong wi‘i'h Josu! she foid fhe incideni’ To her bro‘iher—in-iaw ArJun and she wen? wifh him To Viiiage Padipa where she narrai‘ed ihe inciden‘i‘ i‘o her mofher & faiher. Lasiiy she iodged The vapori- vide Ex.P—1. Her pefi'icocn‘ was seized virie iExP—Zi She conseni‘ed for her meciicai examina‘i‘ion vide ExzP-3. 22. Arjun {PW—2), broTher-inniaw of The prasecu‘rrix, has si‘a‘i'ed in his evidence fhai‘ on fhe ddfe of inciden‘i ai‘ aboui- 1 am. his mo‘rherrin-iaw Rambai came 1‘0 him and i‘oki $him ‘rha‘i- some persons iook the prosecu‘rr‘ix, Then he searched for ihe prosecui'rix, bu? she was no? i‘raceabie. He along with Mohariai wen‘i' 'i'o Poiiée Sfa‘iion Ambikapur aha iodged The missihg repori' 0‘5 ihe prosecufrix. When fhey were coming back fo Their viiiage, fhen anoiher Mohariai foid him The? one woman was prese'n‘r a? Bilari, Then fhey wen? 1‘0 Biiari where ‘ihey saw fhe prasecui’rix, i'hereaf‘i'er, he ‘i'ook her i'o Viiiage Padipa. The prosecu‘l‘rix Toid him fha‘i‘ accused persons Taran, Suresh, Krishna! Mahipai, Devsharan & Dev Kumar have commi‘ifed rape on her. Firsi‘iy, fhey iook her +0 fores’r and commi‘i‘ied rape on her. He informed 1'he Poiice by Telephone and uiTimaTeiy, Took The prosecuTrix To The i Poiice STaTion where she iodged The reporT. He has supporTed The seizure of i , _ Vt‘ i peTTicoaT oT' The prosecuTrix vide Ex.P-2. 25! 5mT. Rambai (i’W—3g! moTher of The prosecuTrix, has sTaTed in her evidence Thm‘ i T aT The Time of incidenT her daughTer wenT ouT from her house To answer The caii 1 x‘ of naTure, some eersons Took her and she was crying aT ThaT Time. The L i grasecuTrix :iici noT came book To her house, Then she informed To her son—in-iaw Arjun and he searched for The prosecuTrix. The prosecuTrix came afTer 1 § days and Toid her ThaT The appeiianTs aiong wiTh oTher co-accused persons Took her To 10 foresf and commi‘h‘ed rape on her one by one‘ She has fur‘fher sfafed fhaf she and her husband are very poor persons and ‘l'hey iive on aims. 24. Mohariai {PW-4) has suppor‘red fhe evidence of Arjun (PW-2). Ancfher Mohaniai nameiy; Moharlal Panika (PW-5) has sfm‘ed in his evicience fha‘f when he was a? Biiari! he came +0 know ‘fnaf fhe grosecu‘rrix was a? Viilage Biiani! fhen he informed i‘o Arjun. Eeizur'e‘9f pefficoat of fhe prosecm‘r‘ix vide EXP—2 was supyor‘fed by Samayial (PW-6). & f 25‘ Dr. Mrs. Shakunfala Xaixo (PW-7) has examineg *he pmsecufrix on 5-3—2003 and ngiced’ injuries as aforemeniioned. She opined 'iha‘i‘ force‘Fui intercourse has been commi‘ifed on The prosecufr'ix. Two siides of vaginai sperm were prepared, same were sen? for chemicai examina‘iion and she odmii'fed fhe‘prosecui‘rix for observafion and freai'menf. She has oiso examined ihe pei‘iicoa'i of The prosecufrix whieh was maroon colour and same was sen‘r for chemicai examinai’ion. 26‘ Dr. M.K. Jain (PW-9).has sfa‘ied in his evidence ihai- he has examined 'r‘ne oo— accused persons and appeiian?s Taren {a Devsharan vide ExsiP-léA +0 P-21A and found ‘z‘hem capabie ‘ro perform infercourse. He has aiso examined The undergarments of fhe accused persons vide ExsP-ZZA 1'0 P—27A. ‘27, MS, Chandei {PW-8), Assisfanf Sub Inspecior, has cafegoricaliy sfa‘ied in his evidence ihe dei'aiis of invesfiga‘iion relafing To missing of The prose-cuTr-ix, Roznamcho Sanha vide EXP—6, FIR. vide Ex.P-1_, medicai examinaTion of The i prosecuTrix & The accused persons, seizure of The arTicies, arresf of accused persons and The sTaTemenTs of The wiTnesses. He has proved The documenTs Exs. P1 To P35. 28. The prosecuTrix (PW—1} has denied The sugges’rion ThaT she has noT iodged The report She has admiTTed in her cross-examinafion para 13 ThaT she has sTaTed in i \ (mm ‘A‘ +o ‘A') of FIR. EXP-1 ihm‘ “m3 Er W WM EST m W €11? bu“? she has denied fhaf she was no? knowing appeiianf Devshar-an on fhe da‘re cf incident She has fur-iher' admi‘rfed fha? her pe‘H‘icoaf which she was wearing m‘ fhe Time of incideni has been seized, bui she has deniad the suggesfion fhai she has iotiged 'i'he vapor? ai- ‘ihe instance of ’ner bmfher—in-iaw Aniun 6i her- bm‘rher’ ' Moharia!‘ She has specifimiiy sfmed in her- cross—examina‘rien para 18 fha‘i‘ noboay has Told The names of accused persons To her, BUT she has seen and‘she “k'rfiows‘i'he aepeiiams & iine ofher cc-accusw persons. The house of appeilan‘i‘ Tar-an is only 200 mirs. away from her house and The house of appeiian‘i‘ 4 Devshamn is near The house of Torah. She has accepfed' The sugges’rion fho‘i‘ a1“ i'he Time when Tamn was commi‘i'i'ing intercourse wi'rh her; she was feeling very bad. She has aiso denied ’rhe sugges‘rion ”rhaf appeiian? Taran has 'nof taken her- fercefuiiy. She has fur‘fher ciehied i'he suggesi‘ion fhaf she wen‘i aiong wi'i'h appelianf Tarah wifh her consent She has sfa‘i‘ed ‘ihaf when Taran was Taking hero she raised cries' She has aise deniedjhe sugges‘rion fha‘r a’r ihe insfance of hen bno+her—in—iaw she is impiica'iing Taran faiseiy. In her eross-examinai'ion she has sfafed fhaf she was per-fur'bed and her physicai & menial condi‘fion was no? good affer The commission of rape by six persons. f ami. C? 29. Defence has cross—examined ‘rhis wiiness a‘r length, bu‘i if has noi been able +0 eiicii any'i'hing in her cross-examinm‘ion To discredi‘i her fesi’impny. She is a rusi‘ic iady and beggar, buf she‘has co’regoricaliy sfafed in her examinm‘ion-in— chief and cross-examinai'ion aboui‘ ‘rhe defaiis of fhe incidenf againsf ali The accused persons. i Arjun (PW-2) has admiTTed ih his evidence ThaT he is accused for offence under SecTion 376 of The I.P.C. and Shambai has iodged reporT againsT him; buT he does noT know The relationship beTween Taron £1 Shambai. He has denied The 31. suggestion Tha‘? the vapor? has been iodged by The prosecufrix a? his insfance wifh a view f0 Take revenge againsf Tamra. Defence has cross—examined Arjun (PW-2); Smfr. Rambai (PW—3), Moharlal (PW-4) & Moharial Panikc {WV-5)! bu“? i? has m? been able ‘ro eiicif any‘rhing subsfan‘riaiiy u‘o discredi‘? ‘rheir evidence. Were is same discrepancy in Their ev§dence, which is rafurni. The evidence af- fhe prosecutrix (PW-1) is maieriai. She has cafegoricaiiy siafed in her examinafion-in-chief & crossiexamina‘iion iha‘i fhe appeiiam‘s (Si o’rher co-accuseci persons iook her forcefuiiy frcm her courfyar& fa 'Sarna band and commiTTed raye an her againsT her wiii & consent She was examined by DnMrs. Shakun‘iaia Xaixa (PW-7) who has noiiced injuries over back of her eibow joini' and priva‘ie par’rs which are suggesfive of commission of fercefui infercourse wifh ihe prosecufrix. The FIR. has been lodges affer one day of ‘i'he incident Evidence of The prosecu‘rrix (?W—1) reveais fhaf on 3-3—2003 The appeiiams & other co-accused persons commiii—ed rape on her a1- night on'4-3—2003 she reached 1'0 her viiinge and next day i.e. on 5-3-2003 she has iodged ‘i'he report During fhis period, she was yhysicai and meniaiiy periurbed and no’r weii. On 5‘3—2003 Arjun (PW-2), brosher-in-icw of i'he prosecu‘rrix! has iodged The missing repor‘i of The prosecui'rix vide EXP—6. Agopeiicni Tar-an has Tried To fake defence ‘iha? fhe (prosecuTrix was The cansenTing’ parTy! she wenT wiTh him on her consenT, buT The prosecu‘i'rix has denied fhe sugges‘iion io this effec’r in para 18 of her cross— examina‘i‘ioni Appeliani Devsharan has fried fo Take defence Thai The prosecuirix was no‘i' known him prior fo The incident buT The prosecufrix has specificaiiy sTaTed in her cross-examinaTion para 18 ThaT she knows boTh The appeiianTs (herein) They are residenTs of The same viciniTy and Their houses are 200 mirs. away from her house aT The same viiiage. She has sTaTed in The FIR. ThaT she \JY r ¢ $ 32. wiil idemify Tamn & his friends. She has furfher s’rafed in‘me FIR. fha'r she di§ nof know any accusad person or unknown persan had commih‘ed rape on her. \ She has aisa smi‘ed in +h,e FIR. fha‘r appelicm‘r Tar-an dong wifh his 8-10 friends commi‘rfed +he offence. She has furfher sfa‘red in “the F‘IR. fha? she was no? feeling good even a? The time of iodging The repori’ and a‘i‘ ‘i‘he fime of medicai 3examim‘rion, cm {his ground she was admiifeci' in fhe hospifai for observa‘rion & irea‘iment This shows i‘hai- of 'l'he Time of repor‘r and affer commission of ihe incident even a‘l' 'i'he Time of her' medicai examinai'ion, her physicai and men‘ral V ‘f coridi'i‘ion was no‘i' good. This is sufficien‘i‘ expicma‘i'ion for deiay of one ciay in iodgigig 'i'he FIR; o 33. Dr. Mrs. Shakum‘aia Xaixo (PW-7) has admi‘rfed in her cross-examinafion fhm‘ she is oniy M335. and she is no? exper'l- in any field. She has admified in her cross- examina‘iion +ha‘? on fhe basis of ossumpfion she has si'a‘ied fhai' forcefui in‘ier'course has been commif‘red on The prosecu‘i‘r’ix, bu? she has no? siai'ed Thai as To how many persons have pommi‘ited rape on