3 IGH COURT OF CHHATTISGARH, BILASPU Criminal Appeal No.372 of 200 6 ’ AELANTS: ajkumar and another PPL R : The State of hhattisgarh RESPONDENT C 'Pos‘t for pronouncement of judgment on 17th August, 2009 . r ‘ sw- f ‘ 111’. SHARMA. H Versus H HIGH COURT OF CHHATTISGARHI BILASPUR Criminal Appeal No.372 of 2006 , (In Jail)’ RESPONDENT: \\\ ‘ Presenti Mrs. Kiran Jain, counselfor the appellants. Mr. ,Sushil Dubey, Govt. Advocate for the State/respondent. APPELLANTS: 1. Rajkumar, S/o Rajendra Banjare, aged about 18 years Peela Lal, S/o Sudarshan Markande, aged about 20 years Both R/o Village Malpuri Khurd, P.S. Nahdini, Distt. Durg, c.G. V VEI’SUS TherState of Chhattisgarh, Through P.S. Nandini, Distt. Durg, C.G. {Qiminal appeal under Section 374 (2) of the Code of Criminai Procedure, 1973}' . SinglevBench: Hon’ble Mr. T.P'. Sharma, J JUDGMENT (Delivered on 17th August, 2009) . This criminai appeal is directed against the judgment of conviction & order of sentence dated 25—4-2006 passed by the lst Additional Sessions Judge, Durg in Sessions Trial No.71/2005 whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for commission of offence under Section 376 (2) (g) of the.I.P.C., sentenced them to undergo R.I. for ten years & pay finevof Rs.1,000/— each, ln default of payment of fine to further ' ‘undergo S.I. for one 'year. Learned Additional Sessions Judge has also convicted both the appellants under Section 506 Part—II read with Section 34 of the I.P.C. and sentenced each of them to undergo R.I. for three years & pay fine of Rs.500/—, in default of payment of' fine to further undergo S.I. for three months. 2. Judgment of conviction & order of sentences are challenged on the ‘ ground that without any iota of evidence, learned Additional Sessions Judge has convicted and sentenced the appellants as aforementioned and committed illegality. ‘ 3. Case of the prosecution, in brief, is that on 6-11-2004 at about 7 p.m., the prosecutrix (PW-1), aged about 14 years, was coming from her Ma’usi’s house at ViHage Malpuri Khurd; Police Station Nandini, Distt. Durg, both the accused persons came from backside, caught hold of her, pressed her mouth and took her towards a pit used for ' dumping waste material where they removed her underwear and accused Rajkumar committed sexual intercourse with her, thereafter, I accused Peela Lal committed sexual intercourse with her: After the commission of offence, they dresSed her and threatened not to ‘ narrate the incident to anybody; She was not in a position to walk, she was suffering from pain, any how she came near the house of Mansingh where she fell down and became unconscious. When she regained conseiousness, she narratedthe incident to her relatives andsot£hers. Immediately she lodged the report vide Ex.P—1. Her_ g underwear was seized vide Ex.P-4. Her marks sheet Ex.P-12 was, ' recovered vide Ex.P-6. She was sent for medical examination vide Ex.P'-24, she was examined by Dr. Smt. Shubham Sawant (PW-10) vide Ex.P—18 who found thatsher secondary sexual characteristics were developed, no external injury was found and vagina admits twg’ ‘ fingers easily. Two slides of vaginal smear of the prosecutrix were. ‘ taken, sealed and handed over to the Constable. Her underwear containing stains was also examined vide Ex.P-19 and again sealed. Broken pieces of bangles and one bangle from the hands of the prosecutrix were recovered vide Ex.P-5. Slides of vaginal smear of the prosecutrix were seized vide Ex.P-7. One underwear was recovered from accused Rajkumar vide Ex.P—8 and one underwear " was' recovered from accused Peela Lal vide Ex.P-9. Admission register of the prosecutrix was seized vide Ex.P-ll, copy of the register is Ex.P-11C. The accused persons were also sentafor' medical examination and they were found capable of committing, sexual intercourse vide Exs.P-14 & P-15. Seized articles were sent for chemical analysis vide Ex.P-32. Presence of sperm over underwear & slides of the prosecutrix and underwear of accused Raj Kumar was confirmed vide analysis report Ex.P-35. Statements of. the witnesses were recorded under Section 161 of the Cr.P.C. and’ after completion of investigation, charge sheet was filed before the Juditial Magistrate First Class, DUrg, who in turn committed the case @ they denied the circumstances appearing against them! pleaded. innocence and faiseiimpiication. The accused persons have examined defence witnesses Jhunnuial (DW-1) & Indal (DW—2). *Jhunnulal (DW-1).has deposed that mother of the prosecutrix came ‘to him and requested for marriage of the prosecutrix with accused I, Rajkumar, who is his nephew, which he refused He has further ’ i deposed that at the time of inCIdent RaJkumar was not reSIding at Vliiage Malpuri and was reSIding at Ahiwara. Indal (DW 2) has also, deposed that at~the time of aiieged incident‘the accused persons were not residin‘g at Village Maipuri and they were residing at” Ahiwara. ’ "After affording Opportunltv 0f hearing to both the parties and after” ‘ ~ appreCIatmg the eVIdence avaiiable on record learned Additionai L SeSSIons Judge has conVIcted & sentenced the appeilants in the TA aforesaid manner. ' .v I have heard learned counsel for the parties and perused the record 0f the trial Court_as also the impugned judgment. ‘ . Learned counsel for the appellants vehemently argued that the eVIdence of the prosecutrix does not Inspire confidence, the prosecution has not proved her agebeiow 16 years and on the ground of enmity -& refusal of the proposai of marriage of the‘ prosecutrix With accused Rajkumar, mother of the prosecutrix has faiseiy impiicated the appellants in the crime in question. Learned, counsel placed reliance in the matter of Dilip and another v. State, ' ‘ of M P. (2001 Crl L J 4721) in which the Apex Court has held that f ‘ if statement of the prosecutrix is contradicted by statement of her ~‘aunt to whom she had narrated the story of sexual assault and also I not supported by medical evidence and report of forensic science laboratory, truthfulness of version of prosecutrix being doubtful, cannot be relied upon. i, to the Court of;SeSsions, Durg, from where learned 1“ Additional , [Sessions Judge, Durg received the case on transfer for trial. . In order to prove the guilt of the accused/appellants, the prosecution L has examined as many as 17 witnesses. Statements of the accused/ , ' I, appellants were recorded under Section 3.13 of the Cr.P.C. in which On the other hand, learned counsel appearing for the State/ respondent has supported the judgment and submitted that the prosecutrix has categoricaHy deposed against both the accused persons which is sufficient for drawing inference that the appellants are the persons who have threatened the prosecutrix and committed gang rape upon her. Age of the prosecutrix on the da’te of incident was below 16 years and both the accused persons had committed gang rape on the prosecutrix without her will & consent. Evidence of the prosecutrix is supported by the evidence of independent witnesses & the promptly lodged F.I.R. Vaginal slides of the prosecutrix were seized and sent for chemical analysis, the report of ’analySis eEx.P-35 proves the fact that she has been subjected to forceful sexual intercourse. .In orderz‘ to appreciate the contentions of the parties, I have examined the evidence adduced on behalf of the parties. ' 10.As regards the question of age of the prosecutrix, the Court has ‘ ascertained her age as 17 years. Mansingh Sahu (PW-4.), teacher, has deposed that according to the admission register (EX.P—ll) date of birth of the prosecutrix is 1-10-1988, she was admitted in the“ school on 3-7-2001 and she has left the school on 1-10-2003. Register has been Seized vide EX.P-12. In his cross-examination, this witness has deposed that he does not know as to who has made. entry in the register. EX.P—ll reveals that the prosecutrix was admitted in Class-VI. Entry of EX.P-ll is not the first and original entry, this entry is based on some other primary entry which the prosecution has not adduced. In case of marginal age, heavy burden is always on the prosecution, to prove the age of the prosecutrix below 16 years on the date of commission of offence. In absence of such evidence it is difficult to hold that on the date of offence, age of _ the prosecutrix was below 16 years. EVen if the date of birth 1-10- 1988 is considered, on 7-11-2004 her age was above 16 years. 11.As regards the commission of sexual intercourse on the prosecutrix that too without her will & consent, the prosecutrix (PW-1) has. deposed that at the time of incident she was residing with her ‘ mother in her maternal uncle‘s house at Village Malpuri, the accused/ 1; i \ appellants are also residents of Malpuri and she know them. On the . ‘ fateful day when she was coming from the house of her maternal aunt, both the accused persons caught hold of her and took her into 'a pit dug for dumping waste material (w), where appellant No.1 Rajkumar committed rape on her, then appellant No.2 Peela Lal also committed rape on her and thereafter the appellants dressed her which earlier they have removed and threatened her she was not In a posmon to walk and her bangles were broken The accused persons fled away from the spot. Some how she came t0 her maternal uncle’s house, she wrote the names of the accused persons :on the wall by dung and became unconscmus When she regained consaousness there was crowd her relatives were present and she, arrated the inCIdent to them. At that time, her uncle went to the , Police Station‘ but the Police directed him to come with her on which her uncle came back Thereafter, she went to the Police Station With her uncle on 7 11 2004 at about 2 55 a m at night and lodged the report Vide EX.P 1. , She was-sent for medical examination and she wasexamined by the doctor. Spot map was prepared Vide EX.P-3. er underwear was seized vide EX.P-4. Broken bangles & one angle after removing from her hand were seized vide EX.P—S. EEri ‘ school marks sheet was seized vide EX.P—6. ‘ 12.1chharam (PW—2), maternal grand—father of the prosecutrix, has deposed that on the fateful day the prosecutrix was not present in I her house and she did not came within 10-15 minutes from her l I maternal aunt’s house, after some time, Heeralal & Chandralata . came and told that the prosecutrix is lying unconscious on Varandah K ‘ 1 of Heeralal on which he went there along with other persons. When her grand—daughter regained consciousness, she narrated that Rajkumar & Peela Lal havercommitted rape on her She has written , ‘ n the names of the aforesaid two accused by cow dung on the wall and . ' ' : ‘ i finally they lodged the report ' ,i‘ i ‘ i I E 13 Kashi Ram (PW 3) has supported the factum of lodging report and ‘ ‘ seizure of documents S. Kumar (PW—5) has also supported the factum 'of lodging report. Heeralal (PW-6) has deposed that the prosecutrix was lying down in his courtyard, she was restless and L unconscious on which then he called the mother of the prosecutrix. I I \<_ i The prosecutrix has written some words on his wall by dung. Girja ' n H b (PW-8), sister of mother of the prosecutrix, has deposed that on the fateful day the prosecutrix went from her house without vegetables because by that time she has not cooked the vegetables and afterwards she came to know that the prosecutrix was lying 'unconSCious, when the prosecutrix regained consciousness, they, ~reported the matter. Smt. Chandralata (PW-16), mother of the prosecutrix, has also deposed the same thing. 14.The prosecutrix was examined by the doctor. Dr. Smt. Shubham Sawant (PW—10) has deposed that secondary sexual characteristics of the prosecutrix were well dev'eloped, no injury was found over her bodyyfher vagina admits two fingers easily, she took two slides of vaginal smear of the prosecutrix vide Ex.P-18 and handed over the sam'eto the Constable. £ 15.In the instant‘case, witnesses present at Village Malpuri have supported the version of the prosecutrix that while she was coming from the house of her maternal aunt, she had not reached her house and she was found unconscious near the house of Heeralal, and she had written something on thewall by dung. The prosecutrix herself h has deposed in her evidence that both the appellants had committed ‘v ‘ . rape on her. Defence has cross-examined the prosecutrix in detail. On behalf of accused Rajkumar it has been suggested to the prosecutrix that Rajkumar has committed sexual intercourse on her _with her consent which she has denied. The prosecutrix has also denied the suggestion that another boy has also committed sexual < interCourse with her and she is accustomed to sexual intercourse. She has further denied the suggestion that some unknown person ' has committed rape on her and she has lodged report against Rajkumar with a view to implicate him falsely. She has denied'the suggestion that she was interested to marry Rajkumar, but when he ‘ refused she has threatened that she will implicate both the. accused ,persons falsely. The prosecutrix has further denied the suggestion thatshe has consented for sexual intercourse with’Rajkumar and also denied the suggestion that unknown person has committed sexual intercourse with her, but she has falsely implicated the, accused persons. J 16;The accused persons have adduced defence evidence of Jhunnulal (DW-l), & Indal‘ (DW—Z). Jhunnulal (DW-l) has deposed that mother of'the prosecutrix came to him and proposed for marriage of the prosecutrix with his nephew Rajkumar which he refused, on which she has threatened him and thereafter, he heard the case of rape. But in his cross-examination he has admitted that he has narrated i this fact to any person. 1ndal (DW-Z) hasdeposed that on the date of alleged incident accused Peeia Lal was with him till 8 p.m. and Rajkumar was also residing at Village Ahiwara. ‘17.In this case, accused Rajkumar himself has suggested the ‘1 ’ commission of sexual intercourse with consent of the prosecutrix g t which the prosecutrix has denied. Defence has not asked anything to motper of the prosecutrix Chandralata relating to proposal of marriage by herself, but has suggested that her father has falsely, implicated the accused persons under conspiracy. Chandralata has denied that her-father was interested‘in marriage of the. prosecutrix r [with Rajkumar. In absence of any suggestion to Chandralata relating to the proposal made by her, evidence of Jhunnulal (DW-l) is of no use. ‘ his; , ‘ I 18.In the the accused present persons. case, only Defence the prosecutrix has cross-examined has deposed her in'detail, against both but it has not been able to elicit anything in her cross—examination to Kb discredit her testimony: On the other hand, the factum of‘ unconsciousness of the prosecutrix juSt after the commission of offence has been supported by other witnesses, who even have not supported the case of the prosecution, and the prosecution has suggestion of consent. For the sake of argument, even if, it is consent or false implication cannot 'be inferred. Her underwear & vaginal slides were sent for chemical analysis and presence of sperm Vover underwear & vaginal slides of the prosecutrix was confirmed vide report EXP—35. Presence of sperm over the underwear of Rajkumar was also confirmed vide Ex.P-35. According to the case of 'defence, Rajkumar is not a married person.‘ Evidence of the " l ‘ - i _ assumed that the prosecutrix is a girl of easy virtue, the fact‘um of ' rs ' t, prosecutrix is corroborated by the evidence of other independent declared them hostile. The prosecutrix has not admitted the, Witnesses to the extent of unconscmusness after the commISSIon of offence and Is duly corroborated by the promptly lodged FI R & presence of sperm on vaginal slldes which ls suggestive of the fact that the prosecutrix has been éubjected to sexual intercourse. The prosecutrix has deposed as to who have committed sexual intercourse with her. Her evidence inspires confidence and it is , trustworthy, sufficient for drawmg inference that the present wuth her Without her consent & Will \ ’ ‘ 19.After )Agdfitional appreciating Sessions Judge the evidence has convicted available & sentenced on record, the appellants. learned This is~a case of gang rape and minimum sentences have been awarded to the appellants Learned Additional SeSSions Judge also foun‘b the accused/appellants guilty of causmg threat to the prosecutrix and accordingly, conVicted the appellants forthe’ aforesaid offence ConViction & sentences imposed upon the appellants are sustainable under the law. 20 For the foregomg reasons the appeal is dev0id of merit same is H _ - - liable to be dismissed and it is hereby dismissed l i ' i 3‘“ ' appellants are the persons who have committed sexual intercourse , . sss (i_ i ”tasHARMA *4“ / .71 Judge 7' l 17 8-2009