HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 2163 of 2000
1. Laxman, son of Bandhan Uraon, aged about 30 years,
2. Shivprasad, S/o Amru @ Amarsingh, aged about 42 years,
3. Rama s/o Bandhan Uraon, aged about 25 years,
All resident of Village Shivpur, P.S. Baikunthpur, Distt. Koria (MP)
The State of M.P.
For Appellants : Shri Vishnu Koshta, Advocate.
For Respondent/State : Shri Adil Minhaj, Panel Lawyer.
Hon’ble Shri Justice Pritinker Diwaker
Judgment On Board
This appeal arises out of the judgment of conviction and order of
sentence dated 8.8.2000 passed by the Additional Sessions Judge,
Baikunthpur, Distt. Koria in S.T.No.163/1999 convicting each of the
accused/appellants under Sections 376(2)(g), 363 366 of IPC and
sentencing them to undergo RI for 10 years, pay a fine of Rs.200/-; RI
for 3 years, pay a fine of Rs.200/-; and RI for 3 years, pay a fine of
Rs.200/- with default stipulations respectively.
02. As per prosecution case, on 25.2.1999 at about 8 pm when the
prosecutrix came out from her house to attend the call of nature, the
appellants caught hold of her, took her to a nearby kitchen garden,
when she tried to raise alarm, appellant No.3 Rama gagged her mouth
by inserting a piece of cloth and then appellants No. 1 2 (Laxman
Shivprasad) committed rape upon her one after another. Unnumbered
FIR (Ex.P/1) was registered at the instance of prosecutrix on 26.2.1999
at 10 am at Police Outpost – Charcha and thereafter numbered FIR
(Ex.P/14) was registered on the same day at 2.30 pm against the
appellants under Sections 376/34 of IPC. The prosecutrix was sent for
medical examination which was conducted by PW-13 Dr. Shobha
Chaturvedi vide Ex.P/13. As per medical report, no definite opinion
could be given by the doctor regarding forcible sexual intercourse and
there was no injury, either external or internal, on her person. Vaginal
slides of the prosecutrix were prepared as Articles C1 C2 and sent to
FSL. Likewise, petticoat of the prosecutrix (Article A) and underwear of
accused/appellant Laxman (Article B) were also seized and sent to
FSL. As per unexhibited FSL report, spermatozoa was found on all
these articles. Appellants Laxman and Shivprasad were also medically
examined by PW-7 Dr. DK Chikanjuri and they were found capable of
performing sexual intercourse vide Ex.P/9A and P/10A respectively. To
determine the age of the prosecutrix, she was sent for x-ray
examination and as per report Ex.P/11 of the Radiologist (PW-8 Dr. MK
Jain), her radiological age was found to be 14-16 years. After filing of
charge sheet, the trial Judge framed charges under Sections 363, 366
and 376(2)(g) of IPC against the accused/appellants.
03. So as to hold the accused/appellants guilty, the prosecution
examined as many as 13 witnesses. Statements of the
accused/appellants were also recorded under Section 313 of Cr.P.C. in
which they denied the circumstances appearing against them in the
prosecution case, pleaded innocence and false implication. In their
defence they examined one Dr. Rajni Sharma as DW-1.
04. The trial Court after hearing counsel for the respective parties and
considering the material available on record, by the impugned
judgment convicted and sentenced the accused/appellants as
mentioned in para-1 of this judgment.
05. Learned counsel for the appellants submits as under:
that on account of previous enmity between the appellants and
the family of the prosecutrix, they have been falsely implicated.
The factum of enmity between them has been admitted by the
That as per statement of the prosecutrix she was subjected to
gang rape by two appellants, however, as per her medical report
there was no injury, external or internal, on her person, which
goes to show that the appellants have been falsely implicated
and no such offence has ever taken place.
That as per medical report of the prosecutrix she was found to be
habitual to sexual intercourse.
That there is no conclusive piece of evidence regarding age of
That there is no allegation against appellant No.2 Rama that he
committed rape with the prosecutrix and therefore, under no
circumstances he can be convicted under Section 376(2)(g) of
06. On the other hand, supporting the impugned judgment it has been
argued by the State counsel as under:
that the prosecutrix is very firm in her version and nothing could
be elicited from her by the defence to make her evidence
doubtful or shaky.
Even if no injury has been found on the person of the
prosecutrix, considering her unrebutted statement the appellants
can be convicted for the offence.
That the prosecutrix has categorically stated that as there was
enmity between the appellants and her family, on that count the
appellants committed rape with her.
That as per FSL report spermatozoa was found on the
underwear of the appellant Laxman, apart from the clothes and
vaginal slides of the prosecutrix, and no explanation has been
offered in this regard by appellant Laxman.
07. Heard counsel for the respective parties and perused the material
08. PW-1 prosecutrix has stated that on the date of incident she was
at her house along with her maternal grand-mother Bifaiya and at
around 8 pm she went out of her house for urination, at that time her
maternal grand-mother was cooking food, when she came out the
appellants caught hold of her, took her to the nearby kitchen garden of
her father, when she tried to raise alarm, appellant Rama inserted a
piece of cloth into her mouth and thereafter, she was subjected to rape
in the kitchen garden by appellants Laxman and Shivprasad one after
another. At that time, appellant Rama had gagged her mouth on
account of which she could not raise alarm. She states that at that time
PW-5 Kashi was passing through the said place and hearing some
noise when he asked as to who is there, the accused persons left her
and fled from the spot and then she informed Kashi about commission
of rape upon her by the accused persons. After reaching home she
also narrated the incident to her aunt Baikunwar, uncle and maternal
grand-mother and on the next morning report was lodged. She states
that her medical examination was done and her wearing apparels were
In cross-examination she admits that her father is in jail for the
last 10 years and her three elder brothers who are married have
ousted her from the house. She also admits that the accused persons
are in possession of 12 acres of land of her father and that she is
interested in getting the said land vacated but the accused persons are
not giving back her land. However, she has denied the suggestion that
because of the said dispute she has lodged a false report and states
that in fact on account of this dispute only the accused persons have
committed rape on her. She states that no crop was standing on the
field in question and it was a sort of garbage, it was a moonlit night and
that the field was grassy, therefore, she did not sustain any injury. She
has denied all the adverse suggestions put to her by the defence.
09. PW-2 Bifaiya, maternal grand-mother of the prosecutrix has
stated that the prosecutrix is about 16-17 years of age and she was
residing with her. She has stated that on the date of incident at about
7-8 pm the prosecutrix had gone out to ease herself and after some
time she returned and informed her that the appellants Rama
Laxman and one another person, whose name she does not
remember, have committed bad work with her and when Kashi reached
there, the accused persons fled from the spot. She also remained firm
in cross-examination. PW-3 Baikunwar has stated that on the date of
incident at about 8-9 pm when she was in her house, her husband was
not there, the prosecutrix came to her weeping and informed that she
was subjected to bad work by the accused persons when she had
gone out to ease herself. PW-4 Rajulal, PW-5 Kashiram and PW-6
Anarkali have turned hostile. PW-7 Dr. DK Chikanjuri medically
examined the appellants Laxman and Shivprasad and found them
capable of performing sexual intercourse vide Ex.P/9A and P/10A
respectively. PW-8 Dr. MK Jain, Radiologist, examined the prosecutrix
to determine her age and opined that her radiological age appears to
be in between 14 and 16 years. He has stated that while opining so he
had considered the variation of two years on either side. PW-9
Shyamlal Mishra, Patwari, prepared the spot Ex.P/5. He has stated
that stones were not there on the place of occurrence. PW-10
Kanhaiya Prasad Gupta, Head Constable, did part of investigation.
PW-11 JA Maravi, investigating officer, has duly supported the
prosecution case. PW-12 Mukteshwar Singh registered the FIR. PW-13
Dr. Shobha Chaturvedi medically examined the prosecutrix vide
Ex.P/13 and according to her, no definite opinion could be given
regarding forcible sexual intercourse and there was no injury, either
external or internal, on her person.
DW-1 Dr. Rajni Sharma has merely stated that considering the
medical report (Ex.P/13A) of the prosecutrix she appears to be habitual
to sexual intercourse.
10. Close scrutiny of the evidence makes it clear that relations
between the prosecution and the appellants were not cordial as there
was an old land dispute between their families. On the date of incident
i.e. 25.2.1999 at about 8 pm when the prosecutrix had gone out of her
house for urination, the appellants caught hold of her, took her to a
nearby kitchen garden and when she tried to raise alarm, appellant
No.3 Rama gagged her mouth by inserting a piece of cloth and then
appellants No. 1 2 (Laxman Shivprasad) committed rape upon her
one after another. The prosecutrix thereafter informed about the said
incident to her maternal grand-mother (PW-2 Bifaiya), aunt Baikunar
(PW-3) and uncle Rajulal (PW-4). A very prompt report was lodged by
the prosecutrix. In her lengthy cross-examination, the defence has
utterly failed to elicit anything from her to make her evidence
untrustworthy or doubtful. Though PW-4 Rajulal and PW-5 Kashiram
have turned hostile, but version of the prosecutrix finds due
corroboration from the evidence of PW-2 Bifaiya and PW-3 Baikunwar.
So far as previous enmity between the parties is concerned, the
prosecutrix has specifically denied the suggestion that on account of
previous enmity she had lodged a false report. Rather, in the given
facts and circumstances of the case, it can safely be taken as a motive
with the appellants to commit this offence.
11. True it is that as per medical evidence no injury, external or
internal, was noticed on the person of the prosecutrix but that alone is
not sufficient to discard the otherwise reliable evidence of the
prosecutrix. It has come in the unrebutted evidence of the prosecutrix
that the place of occurrence was grassy and further, PW-9 Shyamlal
Mishra, Patwari, who prepared the spot map has also stated in cross-
examination that no stones were there on the place of occurrence.
Even otherwise, according to the prosecutrix, while she was being
subjected to rape by appellants No. 1 2, appellant No.3 had inserted
a piece of cloth in her mouth and as such, she was not in a position to
resist the offence. This apart, vaginal slides of the prosecutrix (Articles
C1 C2), her petticoat (Article A) and underwear of accused/appellant
Laxman (Article B) were also seized and sent to FSL and as per
unexhibited FSL report, spermatozoa was found on all these articles.
However, no explanation has been offered by appellant Laxman in this
regard in his statement under Section 313 of Cr.P.C.
12. Admittedly, appellant No.3 Rama has not committed forcible
sexual intercourse with the prosecution, but he was actively facilitating
the other appellants in commission of the offence. As per Section
376(2)(g), where a woman is raped by one or more in a group of
persons acting in furtherance of their common intention, each of the
persons shall be deemed to have committed gang rape within the
meaning of this sub-section. Being so, conviction of the appellant No.3
Rama under Section 376(2)(g) is also in accordance with law.
13. As regards conviction of the appellants under Sections 363
366 of IPC is concerned, from the unchallenged oral and medical
evidence available on record, it is evident that on the date of incident
the prosecutrix was minor, aged in between 14 16 years. The
defence has not adduced any evidence, either by way of suggestions
in cross-examination or by filing any documents in relation to age of the
prosecutrix, which could suggest otherwise. Thus, their conviction
under the aforesaid sections is also based on proper appreciation of
the evidence and needs no interference by this Court.
14. In the result, the appeal fails and is, accordingly, dismissed. The
appellants are reported to be on bail, therefore, their bail bonds stand
cancelled and they are directed to be taken into custody forthwith to
serve out the remaining part of the sentence.