BINDHACHALA GOND KASHIRAM Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) AS these two appeals arise out of the same judgment dated 28.10.2004 passed by Additional Sessions Judge (FTC) Ramanujganj District Sarguja in Sessions Trial No. 266/2003 convicting the accused/appellants under Section 376 (2) (g) IPC and sentencing each of them to undergo RI for ten years and pay fine of Rs. 500, in default of payment of fine to further undergo rigorous imprisonment for six months, they are disposed of by this common judgment:

(2.) FACTS of the case in brief are that on 7.1.2003 FIR Ex. P-1 was lodged by the prosecutrix (PW-1) alleging that on

(3.) PROSECUTRIX (PW-1) has stated in her evidence that she knew the accused/appellants. On the date of incident when she along with one labourer was working in the field, accused/ appellants came running to her and caught hold of her hand. According to her, she was married to accused Bindhachal but he did not keep her as his wife and thus he left her. First she was caught hold of by the accused Binchachal who then called out the other accused. Thereafter, accused Kashiram also came there and caught hold of her. They took her to a nearby tree, accused Bindhachal made her lie on the ground and while he was catching hold of her, accused Kashiram committed forcible sexual intercourse with her and then accused Kashiram caught hold of her and accused Bindhachal committed rape on her. After committing rape on her one after the other, they left her and fled away. According to her, while committing rape on her they were threatening her of life in case she disclosed the incident to anyone. Thereafter, she came to the house of her parents and disclosed the incident to her mother and father and on the next day the matter was orally reported to the police. Thereafter, she has stated that the FIR Ex. P-1 was lodged and she put her thumb impression thereon. Then with her consent she was medically examined, her petticoat was seized by the police in the presence of the witnesses, spot map was prepared in her presence and on all these documents she put her thumb impression. In cross examination she has stated that after marriage, accused/appellant Bindhachal had kept her properly and out of their wedlock one child was also born. She has stated that her matrimonial home and maternal home both are in the same village and whenever she wanted to live in either of these two places she did so according to her sweet-will. According to this witness, at times there used to some dispute over the meals and that her husband, mother-in-law and father-in-law belonged to poor family and were working as labourers. She has however denied that in her matrimonial house she was having any problem for meals and for that she used to go and live in her maternal house. According to her, earlier whenever she visited her maternal home, accused Bindhachal also used to come there to take her back but subsequently he stopped doing so. She has further stated that four months prior to the incident when accused Bindhachal had gone to take her back, her father had refused to send her and drove him away. She has denied that her brother and father had thrown accused Bindhachal into a well. She has however admitted that accused Bindhachal had lodged a report against her brother and father and thereafter some dispute arose between them. She has stated that previously accused Bindhachal loved her a lot but later he started neglecting her. She has denied that accused Bindhachal did not leave her rather she herself left him. She has stated that her marriage with accused Bindhachal took place five years prior thereto. She has further stated that the labourer with whom she was working in the field is not known to her by name. She has further stated that adjacent to her field, fields of other persons including that of her uncle are also there. According to her, it is incorrect to say that she did not raise any alarm but she did do it a little. She has further stated that the labourer who had accompanied her to the field did not raise her voice. Then she stated that when she was being chased by the accused/appellants the said labourer also fled from the scene. She has stated that the report was lodged in the police station by her father and she had merely put her thumb impression on it. According to her, it is true that the report was not read over to her. She has denied that the accused/appellants did not do anything wrong with her. She has denied that the matter was reported to the police 4-5 days after the incident rather she has stated that the report was lodged just one day thereafter. Dayaram (PW-2) - the father of the prosecutrix supporting the case of the prosecution has stated that on the date of incident prosecutrix informed him about the incident. He has stated that one year prior to the date of incident, accused Bindhachal had left the prosecutrix who had instituted a case against him in the Court for maintenance and it is for this he got angry and subjected her to rape with another accused Kashiram. This witness has further stated that after the incident Panchayat meeting was convened by the accused/appellants where they had asked him to keep the prosecutrix with him as they had committed rape on her. They also threatened him not report the matter to the police. However, despite their threat he took the prosecutrix to police station where the report was lodged. He has admitted that previously there was some dispute between him and accused Bindhachal but has denied that accused Bindhachal was thrown by him into a well. This witness has further stated that about four months prior to the date of incident, accused Bindhachal had visited his house to take back his wife but he did not allow her to accompany him. He has admitted the fact that as the report was lodged by accused Bindhachal against him, they were having inimical relations with each other. He has admitted the fact that there was an enmity between him and accused Bindhachal but has denied that out of said enmity he has implicated him in a false case. Jamuna Bai (PW-3) the mother of the prosecutrix has supported the case of the prosecution stating that the incident was disclosed to her by the prosecutrix. This witness has also admitted the enmity between accused Bindhachal and her family members. Phulkunwar Bai (PW-4) has stated that on the date of incident she and the prosecutrix had gone to the field and at about 4 p.m. accused/appellants came there running and caught hold of the prosecutrix. At this stage she has been declared hostile by the prosecution. Ramdeo (PW-5) is the witness to seizure of under garments of the accused/appellants and petticoat of the prosecutrix made under Ex. P-7 and P-8 and P-3. Shivnarayan (PW-6) - another witness to seizure of articles made under Ex. P-7 has not supported the case of the prosecution and has been declared hostile. Head Constable namely Ravi Prasad Kushwaha (PW-7) is the witness who recorded the FIR Ex. P-1. Dania Giddh (PW-