IC—78 3?n^r^ h^ n^T '3TT^T 5b*4icb c'. 3:^ET ^TFn^T, ^Tf|<i'Ko, tst0W*^< Nl*4dl *^leb "••—"-••"••—•"--•-•••••—•"" •"•^ 200 3i1^5T XRR? (4^f^^) '^TTW^rf^T ^TT^T APPELLANT RESPONDENT (Crlminal Appeai i| S-12-2007 Heard Shri D.K. Vishv/fekarma Sao, Government Advocate foil Orai judgment dictated i\ Dhirendra IVllshra. J This crimina! appeal is order of sentence dated 25-6-; the 2nd Additionai Sessions the appeilant under Sections sentenced him to undergo R.l. of Rs. 10.000/-, in defauit of years, respectively. concurrentJv. <^i^(<n<i1Ti HH<rff '^F^^l <f^t^l< ic>'^rRpr ^TT^T Bhang Sai, S/o Prem Sai, aged 29 years, Occupatlon: Cuitivation, R/o viiiage Kaiyanpur, Poiice Station Amblkapur Dehat, District Sarguja (CG). -Versus- State of Chhattisgarh, Through in-charge Police Statlon Ambikapur Dehat, District Sarguja (CG). inder Sectlon 374(2) ofthe Cr.P.C.) i, counsei for the appeilant & Shri Arun theState. n dajs. Ji|dge Both |jirected against the judgment of conviction and f005 passed In Sessions Trial No.27/05 whereby ». Ambikapur, District Sarguja, has convicted P42 & 37S(2)(g) of the indlan Penal Code and |:or one year and R.l. for 10 years & to pay a fine ^ayment of flne to further undergo RJ. for 2% Ithe. sentences- have been dlrected to run 3TT^T ^T ^jcb TT^T 3TI^T 5h+l|ch 3^T ^WW^, t!>Tf1^41<S, (c)c')|^^< ® *41^dl tb^lcb C^ ^\. (^. T^<n l»L^^ '"^ 200 3Ht?T ^S^K (l^f^^) '^ITW^f^T^TT^r 2 2) Case of the prosecutionj the afternoon the prosecutrix, collect firewood In Koilari N separately. Around 4.30 In th| Umashankar and the accused^ caught her and started draggir they Inserted cloth In her mout frightened and f!ed from there. the river and commltted rape ^ not to disclose about the incid returning from the forest, she ?( and when her father returned f|' about the incident to her fatherj 3) During investigation, p| where PW-15 Dr. (Smt.) Shipr^ ofEx.P/19. incident 4) After completing inve^ Umashankar abscondlng, wasl Class, Ambikapur, wno In turr( Judge, Ambikapur, from wh| recelved the same on transfer 1< 5) During trial, prosecutic|n statement of the accused v^s appearing against him in the chi^f<n<flTi ^H<2iT '^.f^si' <Fal^l< ir ^tRPT 37T^T in brief, Is that on 14-11-2004 at about 3.30 In |ier niece Jumen & Saroj madam had gone to frest.. Ail the three were coiiecting firewood i^ aftemoon the absconding accused namely, '^ppeilant Bhang Sai came near the prosscutrix |g her towards river. When she tried to shout, h. Other two witnesses i.e. Jumen & Saroj got ''hereafSer both the accused persons took her to nth her turn by turn. They aiso threatened her otherwise, they shall ki!l her father. After tiarrated about the whole incident to her mother \orn duty In the next morning, she had informed Thereafter the report v^as lodged. 1-osecutrix was sent for medical examination Shrivastava examined her and gave the reoort Aigatjon, charge sheet showing co-accused fjled in the Court of Judiclal IVIagistrate, Flrst committed the case to the Court of Sesslons ^re iearned 2 Addltionai Sessions Judge, ortrla!. examlned 15 witnesses, in al!. Thereafter s recorded in which he denled the evldence 5rosecution case, pleaded innocence and faise 37T^T^ f<Tlicb ^T^T'3TI^T ^RN)" :S^ ^1410<<, ?S>Tfi'yll<S, isf^l^^i W^V\\ tb^llebC^A « ^- ^^S^^^~ W""""""""""""-""""""---^-'^ 200 3TT^?T X[5T^ (l^ilf^cl^) '^TTW^f^T 3TI^T -7.' Impticatlon. He took speclfjc brother & uncle of the pros Chowkidar Banwari. They hac Poiice Station and because o against him and against no reiation whatsoever. ^efence that he has anlmosity with the younger jecutrlx. His brother-in-Jaw was beaten by lodged the report of the above Incident In the this animosity faise report has besn !odged abscohdsng accused Umashankar with whom he has S) Learned tria! Court afte convicted and sentenced the judgment. hearing iearned counsei for respective partles |ppe!lant as mentioned in paragraph 1 of the trte 7) Learned counsel for prosecutrix that she was ravi^ distance up to the river, does not found any Iniuries over the two persons raped the prosec| corresponding injuries on her prosecutrix. He further arguec| witnesses nameiy, Jugmati (P^t that the prosecutrix does not after the Inddent, which is aN there is deiay in lodging the the same. 8) On the other hand, ! impugned judgment of the trial CDNl<n<il4 ^i*i<nT '^f^fe^ <P»t^i< '^3TRW3TT^T appeiiant submits that the version of the jhed in the forest after she was dragged to a r|ot find medical corroboration, as the doctor has feserson of the prosecutrix. The aiiegation is that rtrix agalnst her wishes, however, there are no t3rivate parts, which beile the allegations of the that from perusal ofthe statement of other two |^-3) & Saroj Madam (PW-4), it v/ould be evldent (pisciose about the incident to them ImmedlateJy ^o an unnatural conduct. He aiso argued that r^port and there is no satisfactory expianation for ^arned counse! for the State supported the Court. 371^1 ?»T f<Tli<=b TT^TT 'STT^Tsb^icb 3^Er -q|A||<^^, ^^'1(5, (s|<?'i|^^< <of.A</<b. r^sv'u&^^ 'WTPTT sb*4|eb • • " "——^ 200 3^?T X^TCP (4^f^<i^) <=bi^(<n<fli ^i^i<?il '^.l^si' <Fai^i< ^ 3tRPT 371^T 9) Convlction of the appei|ant is based on the statement of the prosecutrix (PW-2) as also the statemer^ts of Jugmati (PW-3) & Saroj Madam (PW-4). Having heard iearned couns^! for the parties, i have perused the record as a!so the impugned judgment. 10) The prosecutrix (PW-2 has deposed that on the date of incident she had gone with her niece Jugnjiati & Saro] Madam to forest to coilect firewood. Whiie she was coiiecting fire^ood, the appeilant caught her both the hands, !lfted her and took her to a di^tance, when she tried to shout he inserted cloth in her mouth. At that time, ab^conding accused Umashankar aiso came there and he tied her both hands vfrith his Lungi. Thereafter she was made to !ie. Accused/appellant Bhang S| absconding accused Umash^ djsclose about the incident to incident, got frightened and fl| olace where her niece & Umashankar aiso reached 1 ^l committed rape with her and thereafter, |nkar also commltted rape with her. Both the accused persons were hoSdinfe axe and threatened her not to shout & not to ^ny one. Her nlece Jugmati, who was colSecting firewood nearby & Saroj IV!ac|am, who was at a distance, both had seen the sd from there. After the incident, she ran to the Saroj IVIadam were standing. At that time here and there aiso he threatened hsr not to disclose about the incident. |Her mother asked that why she was weeplng, whereupon she replied that|she would never go to forest. At that tlme, absconding accused Umasha|ikar again entered in her house and asked her not to dlsclose about the inctldent. She narrated about the inddent to her mother, which was aiso hear<| by her sister. Her father returned from duty at about 11.00 to 12.00 hours incldent to her father a!so. |on the foilowing day. She narrated about the [hereafter they iodged the report. !n i^er cross- ^TT^T ?FT'f^rNs' TT^T 13TT^T »)^i<=ti 3^- ^NI^^, ^Tfl'M^KS, fc|<»)»iy^< C^<k<^1 ^^3\'is^r ^Wdl sh^lcb "••-•••••••-••--•—••••••—--••""••-•^ 200 3n^?T XRRF (4^^<^T) '^TTW^f^T ^n^T —^ ask4d examination, defence has the accused persons & her r< offending questions In such a questions is that she was a the suggestion of consent Def makes her version un-trustwojlhy has married twice and her has been made that she is a| She has aiso denled the Umashankar or that she is in Bhang Sai with her consent about various details of the act committed by r^action to their act. She has answered a!i the fianner that it inspires confldence. Nature of the co|isenting party; however, she has stoutiy denied fence has not been abie to elicit anything, which or un-reiiabie. She has admitted that she husband had deserted her. A suggestion ioose character iady< which has been denied. luggestlon that she has proposed to marry |)ve with Bhang Sai and she was having sex wlth anfci that she has iliicit reiation with Umashankar. forhier 11) Version of the prosecutilix niece Jugmati (PVA/-3), who hal the forest, appeilant Bhang S^i an aiarm on being caught, ho^ went near Madam. She also 12) Similar is the statemei| when she was coilecting running and to!d her that the result of which she got frightet about the incident to Jagjivan and behind her absconding prosecutrix did not teiS them a| have fied ieavina her alone. CM^ifcn<i1Ti ^H^T ^f^fe^t ^^K / '^'3ff?R3TT^T is duiy corroborated from the statement of her stated that while she was coliecting firewood in caught her aunt from the hand, she had raised Iwever, she was frightened, fled from there and n^rrated about the incident to Jagjivan (PW-8). |it of Saroj Bada (PW-4), who has stated that fir^wood ai! of a sudden Jugmati (PW-3) came Iprosecutrix has been caught by the boys, as a led. Both of them went towards forest and told [PW-8). After half an hour, the prosecutrix came laccused Umashankar also came there. The |iythlng, however, she compiained that why they Leading questions have been asked with_^he_ XI-HI 3TI^T ^T ^icb H8TT ^TR^T^TN5' ^ 'S^f ^W[^>^, V>-^W\<o, isf<7i>|^^< ^ww ^hW^h • •• • -^ 200 3TT^?T ^^R (^I^<N<^) CM^<n<flTi ^i*i<nf ^'fe^l' 'rf^I^R ^^fRTq^^^T permission of the Court to this that she fled for savlng hsr iife,| 13) PW-5 Savitri, slster o1 statement of the Drosecutrix. was weeping after retumlng Umashankar came there and t| of the prosecutrix, PW-7 Ram 8 Jagjivan have corroboratecj 'vvltnesses nameiy, PW-3 Jug| version of the prosecutrix. 14) So far as the argum^ absence of injury over persor^ she was a consentlng party l^ 114A of the Indian Evidence A witness. In answer to the questjons, she sald |as she was frightened. the Dfosecutrix, has also corroborated the |She has also stated that whi!e the prosecutrix ffrom forest. at that time absconding accused hreatened them. PW-6 Budhini Bai Das, mother Kewai Manikpuri, father of the prosecutrix & PW- the version of the prosecutrix and t\?vo other Tiati & PW-4 Saroj have a!so corroborated the fent of learned counssi for the appeilant that of the prosecutrix is suggestive of the fact that concerned, In the matters of gang rape Sectlon ct< 1872, provides for presumption of absence of consent where the prosecutrjx alleges that she was raped by the accused persons without her consent. | Defence has not been able to ejjcit anythlng by 'way of cross-examination of •the verslon of the prosecutri^ independent vvitnesses. 15) So far as the argumei than 24 hours in lodging the that after the incident she repoa-t was iodged on 15-11^ ^his witness to rebut the above presumptlon, as a!so finds corroboration from the statement of fit that there is no explanatlon for delay of more feport is concerned. the prosecutrix herse!f stated rlarrated about the same to her mother and the p04 at about 18.30 hours only after return of he?^ 37T^?T ^T 'f^TW Tf^T 3TR?T $ti+i|cb ^- '/' 3:cET ^||<i||0<4, ^Tf1yll<S, fs»<yi>l^l|< ^l^dl **4ieb •"•—•••"•"•••"••"•""—"••••"-••••""—-^ 200 3n^?r xnra? (4^f^®i<t^) father from duty on the foISowin deiay in lodging the report has l 16) it was aiso argued that about the incident immediately gang rape, who was a!so commission of offence, is not e immediately. She has disci< returning from forest and she i.e. Jugmati & Saroj as to abnormality in the conduct o doubtful. fhe conduct of the prosecutrix in not disciosing 1:0 Jugmati & Saroj creates doubt. The victim of thr^atened by one of the accused persons after ?|Kpected to disclose about the incident to others tsed about the incident to her mother after has a!so compiained before the two witnesses v|/hy they ieft her aione. Thus, there is no f the prosecutrix, which renders her version 17) For the foregoing reaso^ finding of the trial Court and th| infirmity in passing the impugn^d judgment 18) In the result, the appea herebvdismissed. chi<4l<rt<J1Ti *ii^<;if ^f^^ <Fn<^i< ^3tRR3T?^[ ^ day at about 1 1.00 to 12.00 hours. Thus, the ^een duly explained. is, 1 do not find any ground to interfere with the e triai Court has not committed any iliegality or falls, same Is iiabie to be dismissed and it is Sd/- Dhirendra Mishra Judge