VINDHYA PRASAD DUBEY Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) This appeal arises out of the judgment of conviction and order of sentence dated 21.4.2001 passed by the Special Judge {Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act}, Surguja, in Special S.T.No.17/2000 convicting the accused/appellant under Section 376(2)(g) of IPC and sentencing him to undergo RI for 10 years and to pay a fine of Rs. 5000/- with default stipulation.

(2.) As per prosecution case, on 27.5.1999 unnumbered FIR (Ex.P/2) was lodged at Police Station-Jhilmili by PW-10 prosecutrix alleging therein that on 26.5.1999 at about 6 pm when she was going to attend the call of nature, on the way accused/appellant and absconded accused Nanhu Gond met her, lifted her, gagged her mouth and after throwing her on the field, co-accused Nanhu and the appellant committed forcible sexual intercourse with her one by one. She states that while she was being subjected to rape by the present appellant, her brother reached there and after seeing him, the accused persons fled from the spot. Based on this FIR offence under Section 376 (2)(g) of IPC and Section 3(1)(xii) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act was registered against the appellant and accused Nanhu Gond. Later, the FIR was registered by Police Station SC-ST, Ambikapur against both the accused persons under the aforesaid sections. The prosecutrix was medically examined vide Ex.P/6 by PW-11 Dr. Rajshree Singh who noticed scratch over right shoulder, tenderness above back bone, bruising on back little right to back bone; abrasion over 5th vertebra and no injury on lower abdomen or thigh region. She noticed no scratch or swelling on her private part; hymen was old ruptured, there was a fresh tear; one finger easily entered but when two fingers inserted she complained of pain. According to the doctor, no definite opinion about rape could be given but forceful intercourse was done; injury on back was due to rubbing on hard surface and that she was not habitual to intercourse. The doctor prepared two vaginal slides and sent it for chemical examination. During investigation petticoat and underwear of the prosecutrix were also sent to the doctor for examination and as per Ex.P/7, Dr. Rajshree Singh (PW-11) found that there were white spot blood mix stains on the underwear and petticoat. After investigation charge sheet was filed against the appellant showing accused Nanhu absconding. While framing charge, the trial Judge framed charges under Sections 366/34, 376(2)(g) of IPC and Section 3(2)(v) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act against the appellant.

(3.) So as to hold the accused/appellant guilty, the prosecution examined as many as 12 witnesses. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C. in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication. In his defence, he examined two witnesses.