BALIRAM @ LAKHAN GOND Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) Challenge in this appeal is to the judgment of conviction and order of sentence dtd. 13/1/2012 passed by the Sessions Judge, Bilaspur, C.G. in Sessions Trial No.27/11 whereby and whereunder the learned tial Judge after holding the appellant guilty for committing gang rape with the prosecutrix (PW-3) (name not mentioned), convicted him under Sec. 376(2)(g) of the Indian Penal Code, 1860 (in short 'the IPC') and sentenced the appellant to undergo R.I. for 10 years and also to pay fine of Rs.1000.00, in default of payment of fine, to further undergo additional simple imprisonment for three months with a direction that as the appellant/accused is in custody since 12/10/2010 till date of the judgment, the said period be set off.

(2.) 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 the prosecution, the prosecutrix (PW-3) reached to the police station Kota on 10 th October, 2010 and lodged the FIR (Ex.-P/7) on 8.35 p.m. against the present appellant and two other co-accused (absconding and in the final report before the cirimnal court under Sec. 173 of the Code of Criminal Procedure, 1973 (in short 'the Code') it is mentioned that against those other co-accused Arun Yadav and Ajay Yadav investigation is going on and separate supplimentary charge sheet shall be filed against those absconding accused persons). As per the report of the prosecutrix (PW-3), Kota police registered the crime No. 414/10 under Sec. 376/34 of the IPC. In the said FIR, the prosecutrix stated that when she was returning with her husband Vishnu Yadav at about 4.00 p.m. near Laripara one Arun Yadav and Ajay Yadav met and both offered the prosecutrix that they will take her to her village Khargahni when the said offer was opposed by her husband, Ajay Yadav caught hold her husband and Arun Yadav kept her in the cycle and took her to Mahamaya Talab and thereafter committed sexual intercourse, Ajay Yadav also reached and committed sexual intercourse and thereafter they left her near betel shop of the present appellant. The present appellant also committed sexual intercourse. All the act committed by the aforementioned three persons were against her will and consent. Thereafter, one Niranjan Das (PW-1) reached to the spot. The prosecutrix (PW-3) informed him the act committed by the accused persons. Thereafter, her husband also reached to the spot, she informed him the incident. Thereafter she along with her husband and Niranjan Das (PW-1) went to the police station and lodged the FIR. After registration of the FIR and after consent obtained by the prosecutrix and her husband, Kota police sent the prosecutrix for medical examination. Doctor Smt. Sumit Raj (PW-6) examined the prosecutrix and noticed that mental condition of the prosecutrix was not correct to some extent, also noticed a few abrasions at the back, hymen ruptured, two fingers were easily admittig in the vagina, bleeding present, she prepared two slides from the vaginal swab, also noticed abrasion small in size present on left side of perinium, noticed bleeding coming out from the private part and as per the prosecutrix menstrual cycle came on 10/10/2010. She gave her report Ex.-P/13. As per said report, no definite opinion can be given for the recent intercourse and being a married woman the prosecutrix was habituated to intercourse. The accused/appellant was arrested on 11 th October, 2010, he was also sent for necessary examination. Doctor S.K.Jaiswal though not examined before the trial Court, after examination of the accused gave opinion regarding the capability of the accused/appellant to perform intercourse. The prosecutrix was also sent for further examination regarding her psychological fitness. Doctor Sujit Kumar Naik (PW-7) noticed that the prosecutrix is clinically having mental retardation without any behaviorial abnormality and gave report Ex.-P/14. Spot map was also prepared. Clothes of the prosecutrix and accused were seized and sent for chemical analysis. As the other two co-accused were not traceable, Kota police after investigation filed the charge sheet before the Judicial Magistrate First Class, Kota, C.G. with a note that after due investigation supplementary charge sheet will be filed against co-accused Arun Yadav and Ajay Yadav. The Judicial Magistrate First Class, Kota registered the case as Criminal Case No.869/2010 and vide order dtd. 13/1/2011 committed the matter for trial to the Court of Sessions. The learned Sessions Judge receiced the case on committal and framed the charges against the present accused/appellant under Sec. 376 (2)(g) of the IPC.