ASHOK CHAKRADHARI Vs. STATE OF C.G.

JUDGEMENT

(1.) AS these two appeals arise out of the same judgment and order dated 30.6.2010 passed by Special Judge, Durg in Special Case No. 13/2008 convicting accused/appellant - Ashok Chakradhari under Sections 376(1) and 450 IPC and sentencing him to undergo R1 for 7 years with fine of Rs. 1,000/ - and convicting accused/appellant Tekendra Nishad under Section 456 IPC and sentencing him to undergo R.I. for 3 years with fine of Rs. 2,000/ - plus default stipulations, they are disposed of by this common judgment. Facts of the case in brief are that on 16.01.2007 F.I.R. Ex. P -6 was lodged by the prosecutrix (PW -13) aged about 35 years to the effect that on 14.01.2007 when she was sitting opposite her house, accused/appellants came there, accused Ashok caught hold of her and kissed her. When she objected to this, they left her house. In the night when she was sleeping in her house along with her nephew Rama and niece Jyoti (PW -1), at about 11.00 p.m. both the accused/appellants again came there, accused Ashok gained an entry to her house and after removing his clothes committed forcible sexual intercourse with her and at that time accused Tekendra was standing there. It is alleged that her niece and nephew had also seen the incident. It is further alleged that on account of the demise of her mother -in -law, she could not lodge the report promptly. Based on this report, offences under Section 376/34 IPC and 3(1) (xii) of SC & ST (Prevention of Atrocities) Act, 1989 were registered against them. Prosecutrix was medically examined by Dr. G. Chakravarthy (PW -6). After completion of investigation, charge sheet was filed by the police on 28.02.2007 under Sections 376(2)(g) and 450 IPC and 3(1)(xii) of the special Act. The Court below however framed the charge against accused Ashok under Sections 450, 376(1) IPC and 3(2)(v) of the Special Act whereas, against accused Tekendra it was under Section 456 IPC.

(2.) IN support of its case, prosecution has examined 13 witnesses. Statements of the accused/appellants were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charge levelled against them and pleaded their innocence and false implication in the case.

(3.) COUNSEL for the accused/appellants submit that the accused/appellants have been implicated in a false case and the story put forth by the prosecution is highly improbable. According to him, there are material inconsistencies in the statement of the prosecutrix which make her entire version totally untrustworthy. They submit that there are contradictions in the statement of the prosecutrix (PW -13) and Jyoti (P W -1) in relation to timing of offence. They further submit that the incident had taken place at 11.00 p.m. whereas the prosecutrix has stated in her statement that it had taken place at 12.00 in the afternoon while Jyoti (PW -1) who was also present at the time of incident has stated that that the incident had taken place at 1.00 p.m. Counsel for the appellants submit that this difference in the timing of the incident is very material and the accused/appellants are entitled for acquittal. They submit that even the medical report of the prosecutrix does not support the case of the prosecution as no injury was found on her body.