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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.216 of 2011
Bhaiya Lal, S/o. of Ramnath, aged about 24 years,
Occupation Agriculturist, R/o. Village Gadbadi, PS
Baikunthpur, Distt. Koria (CG)
—- Appellant
Versus
State Of Chhattisgarh, Through Police Station Baikunthpur,
Distt. Koria (CG)
—- Respondent
AND
Criminal Appeal No.402 of 2009
Jamuna Prasad, S/o. Shri Ahibaran, Aged about 26 years,
Village Gadbadi, PS Baikunthpur, Distt. Koria (CG)
—- Appellant
Versus
State Of Chhattisgarh, Through Police Station Baikunthpur,
Distt. Koria (CG)
—- Respondent
—————————————————————————————-
For the appellants :Shri TK Tiwari, Advocate
For the respondent/State: Shri Lav Sharma, Panel Lawyer
—————————————————————————————-
Hon’ble Shri Justice Ram Prasanna Sharma
Judgment On Board
14.12.2018.
1. Smt. Hamida Siddiqui, Advocate and Shri Maneesh
Sharma, Advocate have been engaged by the respective
appellants, but despite repeated calls, none appeared, therefore,
Shri TK Tiwari, Advocate present in the Court is appointed as
amicus curiae to argue the matter on behalf of the appellants.
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2. As both the above appeals arise out of common judgment,
both are heard and decided by a common judgment.
3. These appeals are directed against judgment dated
13.5.2009 passed by Sessions Judge, Koria, Baikunthpur (CG)
in Session Trial No.137/2007 wherein the said Court convicted
both the appellants for commission of offence under Sections
376(2)(g) and 506 Part II of the Indian Penal Code and sentenced
them to undergo rigorous imprisonment for ten years and to pay
fine of 500/-; RI for one year respectively with default stipulations.
4. In the present case, prosecutrix is PW-1. As per the
version of the prosecution, prosecutrix is the daughter of
Ramdayal (PW-4) and Kewalavati (PW-3). On 06.10.2007 in
village Dodibahara one Ramnarayan invited the family of the
prosecutrix for some function and the family of the prosecutrix
went to the village to attend the function. In the instance of
Ramnarayan, prosecutrix was stayed back in the house of the
Ramnarayan. In the night when the prosecutrix was washing her
hands and legs, both the appellants along with one Vikki came
there and closed the mouth of the prosecutrix and took her to the
Primary School of the village where appellant Bhaiya Lal
committed rape on her. The matter was reported and investigated
and the appellants were charge sheeted and convicted as
mentioned above.
5. Learned counsel for the appellants submits that
independent witness namely Kumari Janki (PW-5) has not
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supported the version of the prosecution but the trial Court has
overlooked this aspect of the matter. The trial Court has failed to
consider the material contradictions and omission in the
statements of the prosecution witnesses and came to a
conclusion on the basis of conjectures which is not liable to be
sustained. The medical evidence does not corroborate with the
probable story given by the prosecutrix, therefore, version of the
prosecution is doubtful.
6. On the other hand, learned counsel for the State supporting
the impugned judgment would submit that the finding of the trial
Court is based on proper marshaling of the evidence and the
same is not liable to be interfered while invoking the jurisdiction of
the appeal.
7. I have heard learned counsel for the parties and perused
the record.
8. Prosecutrix (PW-1) deposed before the trial Court that she
went to the house of one Ramnarayan with her parents and at the
instance of Ramnarayan, she stayed back there for helping in
cooking and other works. At night when she was washing utensils
in front of the house of Ramnarayan, both the appellants along
with one Vikki came there and appellant Jamuna Prasad put cloth
(dupatta) on her mouth and they took her to the Primary School of
village Dodibahara. When she cried for help, the appellants
threatened her by showing knife and thereafter appellant Bhaiyalal
committed rape on her. Version of this witness is supported by the
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version of Smt. Kewlawati (PW-3) Ramdayal (PW-4) who are
the parents of the prosecutrix to whom she narrated the incident.
Again it is supported by Smt. Kalawati (PW-8) to whom the
incident was informed. Version of these witnesses is supported
by the version of Dr. SK Gupta (PW-13) who examined the
appellant Bhaiyalal and found him capable to intercourse. All
these witnesses have been subjected to searching cross-
examination but nothing could be elicited in favour of the defence.
Version of the medical evidence is unshaken and there is no other
medical opinion of the medical expert contrary to that. From the
statements of all these witnesses it is established before the trial
Court that both the appellants have acted in furtherance of
common intention of rape and both have participated in
commission of crime.
9. The statement of the prosecutrix is quite natural, inspires
confidence and merits acceptance. In the traditional non-
permissive bounds of society of India, no girl or woman of self
respect and dignity would depose falsely implicating somebody of
ravishing her chastity by sacrificing and jeopardizing her future
prospect. Evidence of the prosecutrix to be followed at par with
an injured witness and when her evidence is inspiring confidence,
no corroboration is necessary.
10. In the present case date of incident was in the intervening
night of 06.10.2007 and 07.10.2007 and the report was lodged in
the morning of 07.10.2007 at Police Station Baikunthpur in which
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both the appellants were named as culprits and their act of rape
was also mentioned.
11. Where report of rape is to be lodged many questions would
obviously crop up for consideration before one finally decides to
lodge the FIR. It is difficult to appreciate the plight of victim who
has been criminally assaulted in such a manner. Obviously
prosecutrix must have also gone through great turmoil and only
after giving it a serious thought, must have decided to lodge the
FIR.
12. After reassessing the evidence, this court has no reason to
say that the appellants have been falsely implicated. There is no
reason to disbelieve the evidence of prosecutrix.
13. The trial Court has evaluated the evidence elaborately and
considering the facts and circumstances of the case the trial court
recorded a finding of guilt and this court has no reason to
substitute a contrary finding.
14. Offence of gang rape is punishable under Section 376(2)(g)
of IPC and the offence of threatening to kill is punishable under
Section 506 Part II IPC for which the trial Court has convicted the
appellants and same is hereby affirmed.
15. Heard on the point of sentence.
The trial Court awarded RI for ten years for offence of gang
rape under Section 376 (2) (g) of IPC and RI for one year for
offence Section 506 Part II of IPC which is minimum prescribed
for the offence of gang rape. Less than the minimum cannot be
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awarded, therefore, sentence part is not liable to be interfered
with.
16. Accordingly, the appeals being devoid of merits are liable to
be and are hereby dismissed. As per the report, the appellants
have been released from jail after serving the full jail sentence
awarded to them and after remission granted to them by the jail
authorities. In view of this no further order is required for their
arrest.
Sd/-
(Ram Prasanna Sharma)
JUDGE
Bini