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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