BABLA RAI Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) Challenge in this appeal is to the judgment of conviction and order of sentence dated 06-04-1999 passed by find Additional Sessions Judge, Bastar at Jagdalpur in Sessions Trial No.24/95 whereby and whereunder the learned Additional Sessions Judge after holding guilty the appellants for committing gang rape with prosecutrix (PW-2) (name not mentioned), convicted them under Section 376(2)(g) of the Indian Penal Code (In short 'the IPC') and sentenced rigorous imprisonment for 10 years and fine of Rs.1000/- in default, additional rigorous imprisonment for 1 year to all the appellants:

(2.) The conviction Is impugned on the ground that without there being any iota of evidence the court below convicted and sentenced the appellant as aforementioned and thereby committed illegality.

(3.) As per the case of prosecution, on 19-10-1994, Smt. Menaka Das (PW-6, mother of the prosecutrix) gave a written complaint (Ex.-P/7) against appellant Babla Rai which was taken for enquiry after writing rojnamcha sanha no. 238 dated 19-10-1994. The enquiry was conducted by Assistant Sub-Inspector K.P.Shukla (PW-9) who after conducting the enquiry upon the application wrote First Information Report (FIR) vide Ex.-P/10 at Police Sahayata Kendra. Dharampura, Police Station Jagdalpur against appellant Babla Rai on 20-10-1994 which was numbered as Crime No.470/94 under Section 378 of the IPC against appellant Babla vide Ex.-P/13. After registration of the FIR, the investigating Officer started investigation. Assistant Sub-Inspector K.P.Shukla (PW-9) after obtaining the necessary permission sent the prosecutrix (PW-2) for medical examination vide Ex.-P/11. Doctor Smt. Shanti Pandey (PW-7) examined the prosecutrix (PW-2) and noticed no injury, hymen old healed tear, the prosecutrix (PW-2) was habituated to intercourse. The doctor not noticed any mark of forcible intercourse and nothing can be said about earlier pregnancy, she gave her report vide Ex.-P/7. The Investigating Officer seized transfer certificate (Ex.-P/6) and original admission register (Ex.-' P/6A) of the prosecutrix (PW-2) from Smt. Geeta Thakur (PW-5), Head Mistress, vide Ex.-p/9 and collected evidence regarding the date of birth of the prosecutrix (PW-2) which was 19-07-1979. Appellant Babla Rai was medically examined upon the request sent by Assistant Sub-inspector K.P.Shukla (PW-9) to Medical Hospital Jagdalpur vide Ex.-P/12. The statement of the prosecutrix (PW-2) was recorded on 28-10-1994. The investigating Officer aiso recorded the statement of other witnesses under Section 161 of the Code of Criminal Procedure, 1973 (in short 'the Code'). The investigating Officer seized the medical certificate for the abortion of the prosecutrix (PW-2), a few naked photos and some pornography material upon the memorandum (Ex.-P/2) of appellant Babla Rai. Receipt of Mery Talks Clinic, prescription and identity card seized from appellant Babla Rai vide Ex.-P/3. One camera-roll and a few books containing porn material also seized vide Ex.-P/4. Slide from the vaginal swab prepared by Dr. Smt. Shanti Pandey (PW-7) seized in sealed condition vide Ex.-P/5. Register of Hotel Madhu where appellant Babla Ral had taken room was seized vide Ex.-P/8. The statement of the prosecutrix (PW-2) was recorded under Section 164 of the Code on 21-11-1994 by the Additional Chief Judicial Magistrate Bastar at Jagdalpur. As per the police statement nf the prosecutrix (PW-2), appellant Babla Ral committed rape against her will and consent between May 1994 and September 1994 with the help and support of appellants Sonali Rai and Savita Rai.