ASHOK & ANR Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) Challenge in this appeal is to the judgment of conviction and order of sentence dated 30-4-98 passed by the Additional Sessions Judge, Janjgir, the then District Bilaspur, M.P. (now C.G.) in Sessions Trial No.256/94 whereby and where under after holding the appellants guilty for abducting/kidnapping prosecutrix (PW-4) (name not mentioned) to compel her to marry with appellant Ashok and also committing gang rape, convicted them under Sections 366, 376(2)(g) of the Indian Penal Code (for short 'IPC') and sentenced to undergo rigorous imprisonment for five years and to pay fine of RS. 1000/-, in default of payment of fine, to further undergo simple imprisonment for six months; and rigorous imprisonment for 10 years and to pay fine of Rs.2000/-, in default of payment of fine, to further undergo simple imprisonment for one year, respectively, to each of the appellants, with a direction to run the sentences concurrently.

(2.) Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted and sentenced the appellants as aforementioned and thereby committed illegality.

(3.) As per case of the prosecution, the prosecutrix (PW-4) came to her aunt's house as a guest at village Devlapath (Kudhri). On 28-3-94, at about 7.20 pm, the prosecutrix (PW-4) was returning to her aunt's house from opposite field after attending the call of nature. Both the appellants met her and told her that her brother met with an accident as he fell down from a tree and he is in need of water. Both the appellants took her to the house of appellant Seth @ Ramdayal. When she asked for water, they told her that water is inside the room. When she entered the room, appellant Seth @ Ramdayal bolted the room from outside. Appellant Ashok was inside the room. He pressed her neck and threatened her, then she become unconscious. When she regained her consciousness, she found her clothes open and the appellant committed rape with her at night. Both the appellants covered her eyes and mouth and took her forcibly to some other village of their relative. There also appellant Ashok committed intercourse on the pretext of offer of marriage at village Hathnevra. Relatives of appellant Ashok came they took prosecutrix with them in a jeep and left her at her paternal house on 30-3-94 night. They offered marriage of the prosecutrix (PW-4) with appellant Ashok and promised them that they will come after 8-10 days. When the relatives of appellant Ashok did not turn up, the prosecutrix (PW-4) along with her father went to Police Station Champa and informed about the incident. When the prosecutrix was not traceable on the date of incident, on the next date report of missing person was lodged. The police of Champa after inquiry in the said missing report and after the statement given by the prosecutrix regarding act committed by the accused/appellant, on 13-4-94 lodged First Information Report as Ex-P/13 and registered the crime against both the appellants for the offence under Section 363/34, 376(2)(g)of the IPC vide Crime NO. B2/94. After registration of First Information Report, sport map was prepared vide Ex-P/12. After obtaining necessary permission, the prosecutrix was sent for medical examination. Dr. S. Birthare (PW-5) examined the prosecutrix and noticed no external or internal injuries, but the contusion mark of 2x2cm at the sacral region noticed, hymen ruptured, tenderness in vagina and intercourse has been done. The doctor gave his report vide Ex-P/5. The investigating officer seized the clothes of the prosecutrix vide Ex-P/1 and undergarment of the prosecutrix was seized vide Ex-P/3. For evidence of date of birth of the prosecutrix (PW-4), her admit card original (Ex-P/4) was seized vide Ex-P/5 (Seizure memo Ex-P/5 number is wrongly mentioned as there is already Ex-P/5 MLC report of the prosecutrix). Slides of vaginal swab of the prosecutrix (PW-4) were prepared by doctor Dr. S. Birthare (PW-5) and the same was seized vide Ex. P/B. The appellants were taken into custody. Undergarments of appellant Ashok was seized vide Ex-Pig. He was sent for medical examination and Dr. Vinod Paliwal (PW-10) examined the appellant and opined that he is capable to do intercourse. He gave his report vide Ex-P/10. The doctors examined the clothes and undergarments of the prosecutrix and the appellant and advised for their chemical examination. Spot map was prepared by investigating officer vide Ex-P/20. Arrest memo of the appellants were prepared vie Ex-P/21 and P/22. The articles so seized were sent for chemical examination to Forensic Science Laboratory (FSL) Raipur and the same were duly received by the FSL vide Ex-P/23. After examination, the FSL gave its report and noticed mark of semen and human spermatozoa on the slides and in the undergarment of the prosecutirx (PW-4) which were not sufficient for further serelogical examination.