HIGH COURTOF CHHATTISGARH. BILASPUR APPELLANTS: RESPONDENT: Criminal ApDeal No.376 of 1993 Omkarram and another Versus The State of Madhya Pradesh (now the State of Chhattisgarh) ^ st Post for Dronouncement of iudamenton 21s* July. 2010 Sd/- ' T.P.Sharma Judge RAJESH KUMAR SONTEKE Digitally signed by RAJESH KUMAR SONTEKE Date: 2025.02.06 12:32:47 +0530 -L.fKSISOid^.SS /& .:la' ^ HIGHCOURTOF CHHATTISGARH. BILASPUR APPELI-ANTS: (Injail) RESPONDENT: Criminal ADpeal No.376 of 1993 1. Omkarram son of DinuramSahuaged 19years, 2. Bhedlal @ Bhedulal son of Meghnath aged22years, Both Resident of Village Sursuli P.S. Devri Tahsil Balod Distt. Durg (MP) (nowCG) Versus The State of'Madhya Pradesh (now the State ofChhattisgarh) {Criminal appeal under Section 374(2)oftheCodeofCriminal Procedure, 1973} Present: Mr. Anup Majumdar, counsel for the appellants. Mr. Rakesh Kumar Jha, Deputy Govt. Advocate ,for the State/ respondent. Sinale Bench: Hon'ble Mr. T.P. Sharma, J JUDGMENT (Delivered on 21st July,-2010) 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 30-3-93 passed by the 2" Additional Sessions Judge, Durg in Sessions Trial No. 166/92, whereby & whereunder Jearned Additional Sessions Judge after holding the appellants guilty for eommissionof offence under Seetion 376 (2) (9) of the I.P.C., sentenced each ofthem to undergo R.l. for ten years. 2. Conviction is impugned on the groundthatwithout any iota ofevidence, the trial Court has eonvicted & sentenced the appellants and thereby committed illegality. 3. Case of the prosecution, in brief, is that on 12-1-92 at about 3.30 p.m. after completing herwork in the field, the prosecutrix (PW-1) (name not mentioned) was taking bath at river in incomplete clothes i.e. at that time she was wegring only petticoat, both the appellants came near the place of incident, appellant Omkar demanded the prosecutrix for sexuai intercourse and when the prosecutrix refused, he caught hold of her hands,she tried to rescueand tried to run away from the spot on which ---both the appellants chased her. The prosecutrix entered in a hut of one M ••^: D 1 ^ Sadhu situate near the place of incident where both the appellants also entered and committed rape on her one by one. Another person friend of fhese appellants Motilalwas standing near the river and waswatehing the incident. At that time, wife of Sadhu came near the place of incident to whom the prosecutrixtold the incident and went to the village and narrated the incident to her family members & other persons of the village. Panchayat wasconvened where also the prosecutrix narrated the incident and thereafter, she went to the PoliceStation and lodged F.I.R. vide Ex.P-1. Her stained petticoat was seized vide Ex.P-2. She was sentfor medical examinationandwas examined by Dr.Smt. P. Dani (PW-8) vide Ex.P-12. She was foundaccystomed to sexual intercourse. She was a married lady. Slides of vaginal smear of the prosecutrixwere takenand sealed which were seized vide Ex.P-4. Accused Bhedlal was examined by Dr.S.S. Devdas (PW-5) vide Ex.P-7 and he was found capable to commit sexual intercourse, smegma was missing over the glans penis. On 13-1-92 aGCUsedOmkar was also examined by Dr. S.S. Devdas (PW-5) vide Ex.P-8 and he was also found capable to-commit sexual intercourse, smegma was missing over his glans penis also. Pubic hairs of the accused were cut and sealed, and seized vide Ex.P-3. Underwearof accused Omkar was seized vide Ex.P-5 and underwear of accused Bhedlal was seized vide Ex.P-6. The prosecutrix was examined for determination of her age vide Exs.P-10 & P-11 and as per her radiological examination, her age was about 18 years. Spot map was prepared vide Ex.P-9. Seized articles were sent for chemical examination vide Ex.P-14 and presence of sperrn was confirmed over petticoatof the prosecutrix andunderwear of accused Bhedlal. Statements of the witnesses were recorded under Seetion 161 of the Cr.P.C.. After completionof investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Balod who in turn, committed the case to the CourtofSessions, Durg, from where learnedAdditional Sessions Judge received the case on transferfortrial. 4. In order to prove the guilt ofthe accused, the prosecution has examined as many as eightwitnesses. The aecused were examined under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them, pleaded innocence and false implication. 5. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellants in the aforesaid manner. 6. I have heard learned counsel for the parties, perused thejudgment and record of the trialCourt. 7. Learned counsel for the appellants vehemently arguedthatin order to convict the appellants under Section3?6 (2) (g) of the I.P.C. fbr commission of gang rape or under Section 376 of the I.P.C. for commission of rape, the prosecution is required to provethe factthatthe aceused persons havecommitted sexual intercourse with the proseGutrix without her will & consentor they have committed sexual intercourse with the prosecutnx with or without her will & consent when her agewas below 16 years. In the present case, theprosecution hasnot proved the age of the prosecutrix below 16 years and therefore, the prosecution is required to prove the fact that the aceused persons have committed sexyal intercourse with the prosecutrix and that too without her will & consent. However, in the present case, the prosecution has utterly failed to prove the aforesaid essential ingredients of the offence. Suspicion howsoever grave cannot take the place of legal evidence. The appellants are not under obligation to prove presence of will & consent of the prosecutrix. Learnedcounsel further argued that the evidence of the prosecutrix (PW-1) is sufficient for drawing inference that she was consenting party and she hereelf has given willingness and consent for commission ofsexual intercourse with her, but at the time ofcommission of sueh act when wife of Sadhy came to her kitchen gardenand saw the incident, the prosecutrix has narrated the.incident to her husband and has lodged report. For the reasons best known to the prosecution, the prosecution has not examined wife of Sadhu virtually, who is the eyewitness as perthe case of the prosecution. 8. On the other hand, learned State counsel opposed the appeal and submitted that the evidence of the prosecutrix is sufficient for drawing inference that both the appellants cbmmitted rapeon heronebyoneand she was riot willing or consenting party to the incident. 9. In order to appreciate the arguments advanced on behalf of the parties, 1 have examined the evidence avaitable on record. , -•.~ WWSSV asi.tWWfB3WKiaiaW!iS3V..SSBSSS!'i9iS^SS'xi I^s^r.^^^^W^^-^^ ^ ^ l'^,,Js^ lO.The prosecutrix (PW-1) has deposedin her evidence that after completing her work in the field, she went to river for taking bathand afterremoving her sari & blouse, she was bathing in the river and at that time, she was only wearing petticoat. The appellants came to her, appellant Omkar demanded forsexual intercourse which she refused and condemned, appellantBhedu also demanded for sexual intercourse which alsoshe refused and pushed. Thereafter, when she tried to go towards the diteh, both the appellants followed her, she tried to rescue, but both theaccused followed her and caught hold of her and after threatening her again they caught hold of her. While she was trying to escape from the place of incident, they took her into a hutand eommitted sexual intercoursewith herone by one. She was shouting forhelp, but nobody came. After commission of rape by the two persons, she was not in a position to walk, she was sitting under a tree where wife of Sadhu carrie to whom she told the incident, then they went to her house and narrated the incident to her mother-in-law. Panchayat was convened where she narrated theincident at night. Onsecond day.she went to the Police Station andlodged report. She was examined by the doctor. 11;Prembati (PW-2) - mother-in-lawoftheprpsecutrixhasdeposedin brief that her daughter-in-law, the prosecutrix, narrated the incident to her that two persons have committed rape (ijjatliye). 12.Shobharam (PW-4) has deposed in his evidenee that panchayat was convened by the prosecutrix where she narrated the incident and the accused persons who were also present inthe panchayat had admitted theirguilt. In his cross-examination, he has admitted that Omkar hastold to the panchas that he was called by the prosecutrix, but same was deniedby the prosecutrix. . 13.Dr. Smt.P. Dani (PW-8) has deposed in h.er evidence thaton 14-11-92 she has examined the prosecutrix and has taken the slides of her vaginal smear, the prosecutrix was accustomed to sexual intercourse. The prosecutrixwas examined after two days of the ineident and sperm was not found in the slides of her vaginal smear, vide Ex.P-14. After two days of the incident, presence of sperm on the vagina would not be ^^-—-'nedicallypossible. 14.Boththe accused were examined by Dr. S.S. Devdas (PW-5) on second day i.e. 13-1-92 within twenty-four hours of the alleged commission of offence. They were examined vide Exs.P-7 & P-8 which reveal that smegma was missing over theirglans penis which is suggestive of the fact that either they have committed sextjal intercourse or they have, washed their male organs. In their examination under Section 313 ofthe Cr.P.C. aspecificquestionrelating to missingof smegma on the glans penis has been put bythe Court which they have answered that-they do not know. This shows that they have not washed their male organswith aviewto clean the smegma. 15.Evidence of the prosecutrix (PW-1) substantially corroborated by the evidence of Prembati (PW-2) - mother-in-law of the prQsecutrixwhom the defence has not crpss-examined relating to conduct of the prosecutrix that the prosecutrix has narrated the incident to her, evidence of Shobharam (PW-4) and the suggestion given to him in his cross- examination are sufficient for drawing inference that boththe appellants had committed sexualintercourse withthe prosecutrix at the time of incident. This fact also finds support from medical evidence of the accused persons. Presence of sperm over petticoat ofthe prosecutrix and underwear ofaccused Bhedulal is also confirmed by chemical report Ex.P-14and aceused persons have not offered any explanationrelating to presence of such sperm over the aforesaid elothes. Even otherwise, the appellants have suggestedin para 9 of her cross-examination that the appellants have committed sexual intercourse upon her with Her consentwhich she has denied. 16.As regards the question of consent & willingness, the prosecutrix has specifically denied any previous relation with appellant Omkar. The prosecutrix has denied the suggestion that one day prior to the incident she has called the accused persons. She has further denied the suggestionthat on account bfherconsent both the accused persons have committed sexual ihtercourse with herand when the incident was seen by Belsia - wife ofSadhu, she has lodged report. According to the suggestion given by the defence, Belsia was important witness to unfold the story of consent, but for the reasons best known to the defence, it has not examined Belsia in support of the defence theory of consent. The proseeutrix has categorically deposed and denied the fact t.hat she was consenting party. She has specifically deposed that she tried to ^,^^-Bajei;g 'HfaSia escape from thespot and when she was running from thespot.she was caughf hold bythe accused persons, and the accused persdns had forcefully committed sexualintercourse with her. After commissionof sexual intercourse by both the accused persons, when they left the place, wife of Sadhu came towhom the prosecutrixnarrated the incident. In case ofconsent, there isno circumstance or propriety to narrate the incident to a third person when no one was present at the timeof such offence. This is a ease of gang rape. The prosecutrix has denied the suggestion of consentand she has specifically deposed that she was not consenting party. In case of gang rape, if the proseeutrix states before the Courtthatshe did not consent for sexual intercourse, the Court shall presume that she did not consent for sexual intercourse in terms of Section 114Aofthe Indian Evidence Act, 1872which readsthus, "114A. Presumption as to absence of consent in certaln proseGutions Tor rape.^ln a prosecution for rape uhder clause (a) or clause (b) or clause (c) clause (d) or clause (e)or clause (g)of sub-section (2) of section 376 of the Indian Penal Code, 1860 (45 of 1860) where sexual intercourse by the accused is proved and the question iswhether it was without the consent of the woman alleged to have been rapedand she states in her evidence before the court that she did not consent, the Cpyrt shall presume that she did not conseot." 17.1n the present case, evidence of the prosecutrix substantially corroborated by the evidence of Prembati (PW-2), Shobharam (PW-4) and medical evidence, even specific suggestion given by theappellants, are sufficient for drawing inference that both the appellants had committed sexual intercourse with the prosecutrix one by one and she has not consented for such sexual intercourse. 18.After appreciating the evidence available on record, learned Additional SessionsJudgeconvictedtheappellantsunderSection376(2)(g)ofthe I.P.C. and sentencedeach of them to undergo R.l. for ten years. Gonviction of the appellants is based on legal, clinchjng andcredible evidence sustainable under the law. 19.As regards quantum of sentence, the trial Court has awarded minimum sentence to the appellants interms ofSection 376 (2) (g) ofthe I.P.C. On close scrutiny of evidence, 1 do not find any illegality in convicting & sentencing the appellants ynder Section 376 (2) (g) ofthel.P.C. •k.:.i.j..i,:lll,,. Soma ZO.Consequently, the appeal is dismissed. The appellantsare on bail, they shall surrender immediately before theCourt of 2" Additional Sessions Judge, Durg or its successor-in-office for serving remaining sentence imposed upon them in Sessions Trial No.166/92. ] Sd/-~":~7 . '• P. Sharnia Judge