TIHARU Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) This appeal is directed against the judgment dated 10-5-2002. delivered by Shri Yogesh Mathur. learned Additional Sessions Judge. Sakti. District Bilaspur in Session Case No. 356 of 2001. where by the appellants were convicted under Section 376 (2) (g) of the Indian Penal Code and were sentenced to undergo R. I. for 10 years and to pay a fine of Rs. l.000/-, each and in default of payment of fine to undergo additional R. I. for one year.

(2.) Briefly stated prosecution story as revealed by the typed First Information Report-Ex. P/14 lodged by the prosecutrix on 18-7-2001 is that on the same day at about 8.00 a.m. while her husband was away from home and she was cleaning the courtyard of her house, the appellants herein along with co-accused Dasharam and Prem Das came there, started quarrelling and assaulted her. Both the appellants herein pushed the prosecutrix on the ground and dragged her inside the house. Appellant- Jugudas caughl hold of the hands of the prosecutrix and appellant-Tiharu after removing her clothes and gagging her mouth with one hand and, committed rape on her. Dasharam and Prem Das stood guard outside the house. Sikandar aged about 10 years, son of the prosecutrix who was present inside the house ran away on being slapped by Jugudas. The prosecutrix informed the incident to Hemvati (P. W. 5) and also to Budhram Kotwar (P. W. 6). The prosecutrix was sent for medical examination. Dr. Smt. Shashikala Miri (P. W. 1) examined the prosecutrix on 20-7-2001 and found no marks of any injury either external or on her private parts. She opined that the prosecutrix was habitual of sexual intercourse. Accused-Tiharu was also examined by Dr. G. L. Miri (P.W.2) who found that he was capable of performing sexual intercourse.

(3.) Seminal slide of appellant Tiharu, vaginal slide of the prosecutrix along with Saya, Kurri (undergarment) and Chaddi of the prosecutrix were sent for chemical analysis to the Forensic Science Laboratory. Pres- ence of semen and human spermatozoa was confirmed only on the seminal slide of appellant Tiharu. After completion of investigation, the appellants along with co-accused Dasharam and Prem Das were prosecuted under Section 376 (2) (g) of the I. P. C. Both the appellants abjured the guilt and pleaded false implication due to enmity on account of property dispute and led no evidence in defence. The prosecution examined as many as 9 witnesses. The trial Judge relying upon the evidence of the prosecutrix convicted and sentenced the appellants as aforesaid in paragraph 1 while acquitting co-accused Dasharam and Prem Das.