BHOLARAM Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) THIS criminal appeal is directed against the judgment of conviction and order of sentence dated 5-9-07 passed by the Sessions Judge, Durg in Sessions trial No. 433/91 whereby and where under after holding the appellant guilty for the offence of gang rape convicted the appellant under Section 376 (2) (g) and 450 of the Indian Penal Code (in short the Code) and sentenced rigorous imprisonment for 10 years, with fine of Rs. 1000/- in default of payment of fine additional rigorous imprisonment for 6 months and rigorous imprisonment for 3 years with fine of Rs. 500/- in default of payment of fine additional rigorous imprisonment for 3 months.

(2.) THE judgment of conviction and order of sentence is challenged by the appellant on the ground that without any iota of evidence of commission of gang rape by the appellant learned Sessions Judge has convicted and sentenced the appellant aforementioned and thereby committed an illegality.

(3.) PROSECUTION case in brief prosecutrix PW 5 aged about 24 years was residing in a hut near Purena Station District Durg. On the date of incident intervening night of 26th and 27th of June, 1991 at about 9 p. m. , she was cooking her meal, appellant bholaram was residing in front of house of the prosecutrix. Accused asked the prosecutrix whether she is cooking meals also for him, on her refusal accused went away. After taking her meal prosecutrix closed the door and went for sleep. At about 11 p. m. some person knocked the door but she did not open the door. She was under fear. She also cried for help then after breaking the door 3 persons entered into her house and caught hold her neck and snatched her clothes. Accused Bholaram committed intercourse with her. He committed intercourse with her twicely. Another co-accused shambhu also committed intercourse with her twicely, another accused also committed rape with her. Both the accused again committed carnal intercourse with her against the order of nature by inserting male organ in the anus of prosecutrix. She become unconscious, again they committed intercourse. They threatened her when they will fled away from the house of the prosecutrix then she went to the house of kirtanbai, she narrated the incident. Second day morning Bholaram came to her house and repaired the broken door and took her to the doctor where doctor injected her. Prosecutrix was not in position to walk properly. She was suffering from pain in her private part and anus. On 30-6-91 she lodged the report vide Ex. P-5. One sari and Rs. 10/- were taken by accused Ubey from the house of prosecutrix was recovered vide Ex. P-9, blanket and jute bag used at the time of commission of the offence was recovered from the house of the prosecutrix vide Ex. P-10. She was sent for medicial examination by PW-2 Dr. Smt. N. Sharma. On 2-7-91 on her examination one contusion over right thigh of 3" x 2" one continue 3" x 2" upon her left breast and scratches over both the calf muscles were found. Tenderness was present over her private part and anus. Two slides of vaginal smears were taken. She has also examined one blanket and jute bag vide Ex. P-5. Accused Ubey and Shambhu were examined by Dr. L. D. Dhote vide Ex. P-1 and P-2. Spot map was prepared vide Ex. P-3.