SANJAY PATHAK Vs. STATE OF CG

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 16-11-2005 delivered by Shri M.P. Singhal, Special Judge, Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, Bastar, place at Jagdalpur in Sessions Case No. 164/2005 whereby the appellant was convicted under Section 376(2)(g) and 323 read with Section 34 of I.P.C. and was sentenced to undergo R.I. for 10 years and a fine of Rs. 5000/-, in default to under additional R.I. for six months under Section 376(2)(g) of the I.P.C. and to undergo R.I. for six months under Section 323 read with Section 34 of the I.P.C. Both the sentences were directed to run concurrently.

(2.) BRIEFLY stated the prosecution story is that prosecutrix, a girl aged 19-20 years, and Dogaram P.W. 2 had visited the fair in Borpal to see the dance. While they were witnessing the dance, some policemen passed by. After some time, the appellant Sanjay Pathak with two other co-accused came and told the prosecutrix that she was being called by the police. The prosecutrix and Dogaram refused to obey. The appellant and the two persons accompanying him assaulted Dogaram and the prosecutrix by a wooden club. The appellant caught hold of the neck of the prosecutrix and threatended whereupon the prosecutrix and Dogaram accompanied the appellant and his two associates. The appellant took the prosecutrix towards the village pond. While the two associates caught hold of Dogaram, the appellant took the prosecutrix in a field and committed rape on her. The prosecutrix shouted but the appellant gagged her mouth with one hand. Thereafter, the two associates of the appellant also committed rape on the prosecutrix one after another. The prosecutrix shouted but no one came to her to rescue.

(3.) THE appellant was arrested on 4-3-2005 at 3.00 P.M. by Police Station Narayanpur. Shri M.R. Ahire, S.D.O. Police P.W. 6 seized on 3-3-2005 from the place of occurrence one black sandal, one locket and broken bangles vide Ex.P-2. The prosecutrix was sent for medical examination. Dr. Kumud Kanwar P.W.4 examined the prosecutrix at 3.45 P.M. on 3-3-2005 and found that secondary external genital was well developed. There was no sign of struggle. There was an old ruptured hymen, two fingers were easily admitted in the introitus. In the opinion of the Dr. Kumund Kanwar P.W. 4, the prosecutrix was habituated of sexual intercourse. She opined that there was no sign of struggle or any external injury on her person or on her back. She prepared slides of vaginal secretions and after sealing the slides handed it over to the constable. Shri M.R. Ahire, P.W. 6 seized the petticoat of the prosecutrix and the sealed vaginal slides on 4-3-2005 vide Ex.P.4. The appellant was medically examined on 5-3-2005 by Dr. M.K. Suryawanshi who opined that the appellant is capable of performing sexual intercourse. The petticoat and slides mentioned above were sent for Forensic Science Laboratory. Vide report Ex. P.9 presence of human spermatozoa was confirmed on the petticoat as well as two vaginal slides. The two associates of the appellant could not be arrested. After completion of investigation, the appellant was prosecuted under Section 376(2)(g), 323 read with Section 34 and Section 392 of the I.P.C. Charge for aforesaid offences was framed against the appellant. The appellant abjured the guilt. The prosecution examined Dr. M.K. Suryawanshi P.W. 1 who had examined appellant, the prosecutrix P.W. 2, Dogaram P.W. 3, Dr. Kumud Kanwar P.W. 4, S.H.O. Narayanapur Sanjay Pudhir P.W. 5 and S.D.O. Police M.R. Ahire P.W. 6. Relying upon the evidence led by the prosecution, the trial judge convicted and sentenced the appellant as aforesaid in para 1.