«^-; APPELLANTS: RESPONDENT: HI6H COURT OF CHHATHS6ARH. BILASPUR Critninal ApDeal No.82of 2004 Samaroo ond onother Versus State of Chhottisgarh Post for pronouncement of judament on ^ FebnKxry, 2009 Sd/- T.P.Sharma Judge ^ v-^. \/ APPELLANT5: RE5PONDENT: HI6H GOURT OF CHHATHSeARH. BILASPUR Criminal Apoeal No.82 of 2004 1. SamQroo, S/o ^hasia, aged about 28 years, Caste Kanwer, R/o Kumhibcdial, P.5. Chokradhar Nagar (Raigarh), Tahsil <& Distt. Rai9arh (C.6.) 2. Arun, S/o Late HarJshQnkQr1, aged about 21 years, Caste 6ond (Sidar), R/o Sambalpur (Orrissa), Presently resident of Kumhibahai, P.S. Chakradhcir Nagar (Raigarh), Tahsil & Distt. RaiQarh (C.©.) Versus State of Chhatti^arh, Through S.H.O., P.S. Chakradhar Nagar, Distt. Ras^orh. (Criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973} Present: None for the a&Deiiants. Mr. Sameer Behar, Panel Lawyer for the State/respondeht. SiriGle Bench: Hon'ble Mr. T.P, Sharma. J JUD6MENT (Passed on t^C February, 2009) 1. By this appeaj the oppeilQnts have chalienged leaality & propriety of the jud9ment of conviction <& order of sentence dated 30-9-2003 passed by the 1st Additional Sessions Judge, Raigorh in Sessions Trial No.210/2002, whereby learned Additionol Sessions Jud9e after holdin9 the appellants guilty for commis^ion of offence of gang rape, iile9a! confinement & wron9fut restrdnt convicted them under Sections 376 (2) (9) <& 341 of the I.P.C. and sentenced each of them to undergo R.I. for ten years & pay fine of Rs.200/-, in defoult of payment of fine to further undergo R.I. for two months <& to undergo R.I. for one month, respectively. 2. Conviction of the appellant3 is challenged on the 9round that without any reliable and clinchin9 evidence against the appellants, the Court below has convicted <& sentenced them in the afore^aid manner ond thereby committed illegality. 3. Case of the prosecution, in brief, is that on 8-8-2002 at about 8 p.m. the prosecutrix (^W'T), aged about 19 years, aiong with her husbwd <& brother went ^^ \; to the Kirana shop for purchasing coconut, whi!e they were Qolr^ m front of the house of accused Somaru, accused Somaru called them to his house, when they were in the Varandah of Samaru, suddenly co-accused Arun came, he wos in drunken condition, he pushed the brother & husband of the prosecutrix oind assaulted them with club, thereafter, he dragged the prosecutrix inside the room <snd locked her. Husband of the prosecutrix NQndlal & brother of the prosecutrix Kashiram Yadw became frightened and went to th©villa9e for heip. Both the dtccused persons took the prosecutrix to the field, they sncitched her Sari and after loyin9 her in the field, accused Arun committed forceful sexud intercourse on her ond thereafter, Samoru committed forcefu! sexual intercourse on her, thereofter, they fled <way from the spot. The prosecutrix cried for help whereupon OjhQl Gond, Rqjesh Sharma, her brother Kashiram Yadw & husband Nandlal come, she narrated the incident to them and lodged the F.I.R. on 9-8- 2002 vide Ex.P-12, Sari <& petticoat of the prosecutrix were seized vide Ex.P-1 from the prosecutrix. The prosecutrix was sent for medicai examination and she was examined by &r. Usha Kiran Bhagat ^>W-6) vide Ex.P-10 and found occustomed to jntercourse. Two slides of vaginai smear of the prosecutrix were prepored/same were seaied and handed over to the Constable which were seized vide Ex.P-2. One hdf pant was seized from accused SQmaru vide Ex.P"4- One cloth WQS seized from accused Arun vide Ex.P-5. The accused persons were examined by the doctor and they were found copable of committin9 sexuai intercourse vide ExsP-8 <& P-9. Spot map wcxs prepored vide Ex.P-22. Seized articles were sent for chemical analysis vide Ex.P-23. 4. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and Qfter completion of investJ9atJon, charge sheet was filed before the Judicia! AAagistrate First Class, Raigcrh, who in turn, committed the cose to the Court of Sessions Judge, Rai9arh, from where leorned 1 Additiond Sessions Jud9e received the case on transfer for triai. 5. In order to prove the guilt of the accused persons, the prosecution has examined as many as ten witnesses. StGtements of the accused per^ons were recorded under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them, pieaded innocence and false impiication. 6. After affording opportunity of hearing to the parties, Court below has convicted Asentenced the appellants in the aforesaid manner. 7. I have heard learned counsel Qppearing on behalf of the State/respondent and perused the impugned Judgment as also the record of the Court below. 8. The appellants have challenged legality & propriety of the judgment of conviction on the grounds thot the conviction is based on surmises <& conjectures, the Court below has failed to Qppreciate the mciterial omissions in the prosecution ccuse and also not appreciated the medical evidence, and not considered the fact that th© prosecution has not proved the case by adducing reliable evidence. 9. In order to appreciate the contentions, I hwe examined the evidence adduced on behalf of the prosecution. The prosecutrix (PW-7) has deposed in her evidence that on the fGteful doy when she was coming from the Kirana ^hop with her husbond <& brother cind passing in front of the house of accused Samaru, Somaru called them and after some time, accused Arun <& Samoru ^tarted assaultin9 her brother <& husband. The appellants dragqed her towards the field and both the appellants committed forceful sexuai intercourse on her, one by one. She tried her level best to swe herself, but both the appellants used criminal force. Her husband & brother went to the villa9e and tried for help. After the commission of offence, she olso cried for help and she narrated the incident to her brother, husband <& other persons. Villagers tried to seorch for the appellants, but the oppeliants fled oway from the village. On the second day olso, villagers seorched for both the appellants, they cau9ht hold of them and called a meetin9 in the vilia9e- Finolly ^he lodged the report cind her clothes were seized. 10. Version of the prosecutrix has been supported by Nandlai Yadav ^W-8), husbotnd of the prosecutrix. Rcsjesh Sharma (PW-9) has deposed that he was told by the husband of the prosecutrix namely, Nandlal & brother of the prosecutrix namely, Kashiram Yadav that the Qppellants hove confined the prosecutrix, whereupon he aiong with other persons went to the house of accused/appellcmt Somaru, the accused/appellants were not present there, the prosecutrix was also not found in that house and after some time, they heard some cries and went towards that direction. The prosecutrix who was half naked told them that the appellants have committed forceful sexuol intercour^e on her and fled away from the spot. They seorched for the appeliants, but they were not present in the village and on the second day the meeting wos convened in which the appellcints confessed their guilt ond tried to settle the matter within the viilage, but the prosecutrix refused and ultimcitely she lodged the report. Ujjal Sin9h (PW-1) hos supported r ^ ^/- 4 ^ Soma the version of Rajesh Shcirma Q:>W-9). The factum of Ponchayat has been supported by Ghurau Rathiyo (PW-4). 11. Dr. S. Lakra (PW-5) has deposed that he has examined Kashiram & Nandtal and found simple hurts. Dr. Usha Kiran Bhagot (PW-6) has examined the prosecutrix and stated that the prosecutrix is a fully grownup married lady accustomed to intercourse. Defence has cross-exomined the prosecutrix and other witnesses ot length/ but it has not been able to elicit anything in their cross-examinQtion to discredit their testimony. 12. The prosecutrix 0:>W-7) has categorically stated thot the appellants after using criminal force on her husband <& brother forcefully dra99ed her ond committed forceful sexual intercourse on her in the field, her husband & brother went to the villcge for help. Ujjal Singh (PW-1), ©hurauRathiya lpW-4), Nandlal Ycriav (PW-8) <& Rcyesh Sharma (PW-9) have specifically stated that Nandlal <& Kashiram came to them for help on which they seorched for the accused persons and they found the prosecutrix in abnormal condition, she was coming from the field, ^ie WQS not in proper dress and she narrated the incident to them. The above evidence is sufficient for drawing inference that the appellants have committed forceful sexual intercourse on the prosecutrix without her wi!I <& consent, after restrQining her in the field. 13. After appreciating the evidence, Court below has convicted the appellants under Sections 341 <& 376 (2) (g) of the I.P.C. for commission of 9an9 rape. Conviction of the Qppellonts is sustainable under the law. 14. As regords the question of sentence, the Court below has ca^arded minimum sentence of ten years for commission of offence under Section 376 (2) (9) of the I.P.C. ond one month under Section 341 of the IP.C. The Court below has adequately awarded the sentences and it hos owarded the minimum sentence prescribed under the law. No interference is called for in this regord. 15. Consequently, the Qppeol is without ony substance, same is liable to be dismissed and it is hereby dismissed. Sd/- T.P.Sharma Judge