KUSHALRAM Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) This appeal is directed against the impugned judgment of conviction and order of sentence dated 30-04-2004 passed by the Additional Sessions Judge, Dhamtari in Sessions Trial No.231/2002, whereby and whereunder the appellants have been held guilty for commission of offence under Section 376(2)(g) and 506-B of IPC and sentenced them, as described below <FRM>JUDGEMENT_22_LAWS(CHH)7_2019_1.html</FRM>

(2.) The prosecutrix, Sarita, PW-3, lodged FIR in Ex.P-6 at Police Station Sihawa on 23-02-2002 at about 12.30 hours, wherein it was stated that while she, along with her friend Basanti, PW-13, were crossing through the agricultural field for attending a function in the house of one of her friend Bhuneshwari, the appellant Kamlesh came from behind and caught hold of her, mouth was gagged and she was also caught by two other accused-appellants-Kushal Gond and Dilip and dragged towards the agricultural field. Her friend-Basanti, PW-13 was dragged to other side by Kailash Yadav, Bhooshan Gond and Phagnu Gond. It was further stated in the FIR that Dilip was asked to keep watch and inform if some passer-by is seen and thereafter, she was first raped by Kushal Gond and thereafter by Kamlesh. Thereafter, when prosecutrix-Sarita was returning, she met Basanti on the way. The appellants threatened them not to disclose the incident. On way, they met with one Indal Sahu and thereafter, along with Basanti, came to her house and informed her mother and father and number of villagers gathered and thereafter, mother and father of Basanti were also called in the house of Sarita. Thereafter, Basanti went to her own house, since by that time, it was too late in the night, report could not be lodged in the night and on the next morning, the report is being lodged. After recording FIR and registering crime against the appellants, alleging commission of offence of rape, the prosecutrix was sent for medical examination and she was examined by Dr. Abha Rani Singh, PW-2. Undergarments and clothes of the appellants and the prosecutrix were seized. Slides of semen of the accused appellants and slides of vaginal swabs were also prepared and sent for examination to the Forensic Science Laboratory. Upon completion of usual investigation, charge sheet was filed and on the basis of the allegations contained in the charge sheet, the appellants were charged of having committed offence of gang rape on the prosecutrix, which was denied. As far as appellants-Kushal and Kamlesh Yadav are concerned, it was alleged that they committed rape on the prosecutrix, whereas as against accused-Dilip, it was alleged that he aided other accused in the commission of offence of rape. The appellants having abjured guilt, were subjected to trial. In order to prove its case, the prosecution examined as many as 16 witnesses which included Prosecutrix, PW-3 and her friend Basanti, PW-13, who was also allegedly subjected to rape by Kamlesh and three other persons. In addition, the prosecution also examined mother and father of Sarita (prosecutrix) and the doctor, who had medically examined the prosecutrix. The Court also examined, as a Court witness, Senior Scientific Officer and Assistant Chemical Examiner, State Forensic Science Laboratory, Raipur. The appellants were examined under Section 313 of Cr.P.C. in respect of incriminating evidence and circumstances appearing against them in the evidence led by the prosecution. The appellants denied having committed any offence and stated that the appellants were falsely implicated. No defence witness was examined.

(3.) Assailing correctness and validity of the impugned judgment of conviction and order of sentence, learned counsel for the appellant argued that the appellants have been falsely implicated in this case and they have not committed any offence. It is contended that the evidence of Sarita, the prosecutrix, not only suffers from material contradictions and omissions, but also inherent improbability. Her allegation that she was subjected to rape by two of the appellants one after the other in quick succession, is not supported from the medical evidence. Dr. Abha Rani Singh, PW-2, who has examined the private parts of the prosecutrix, has clearly stated that hymen of the prosecutrix was found intact and vagina hardly allowed penetration of 1/4th of the index finger. He would argue that even according to the prosecution, the prosecutrix was approximately 16 years of age and had there been slightest penetration of male genital organ, some kind of injury would have been found. He further submits that according to the prosecution, it was a case of gang rape and the prosecutrix has stated that two of the appellants have committed rape on her one after the other without any time gap, in such a situation, it is wholly improbable that no swelling or redness would be found in the vagina of the prosecutrix. According to him, in such an event of gang rape with the girl of such an age by the appellants, who are grown up boys, hymen could not have remained intact. Further argument of learned counsel for the appellants is that according to the prosecutrix, she was dragged towards the field and made to lie on the uneven ground of agriculture field and subjected to rape, but no injury was found on any other part of the body of the prosecutrix including her back. Moreover, it is argued that the prosecutrix has not came out with the case that she offered resistance or called for any help. He would also argue that the conduct of the prosecutrix in not disclosing anything to Indal Sahu, PW-12, whom she met while coming back along with her friend Basanti, immediately after the incident, near the agriculture field, renders the prosecution story furthermore doubtful. Learned counsel for the appellants argued that the plausible and possible defence, as emerging from the evidence led by the prosecution including that of Indal Sahu, PW-12 and Domar Singh, PW-12 that both the prosecutrix, Sarita, PW-3 and her friend Basanti, PW-13 went towards the agriculture field late in the evening, on a whistle call given to them probably by their lovers and when the appellants and other boys of the village (appellants of connected Criminal Appeal No.512 of 2004), chased them and caught them in the field, their lovers ran away and the appellants caught the two girls including the prosecutrix at the spot, they were scolded and were brought back to their house. When this is became open in the village, the prosecutrix and her friend Basanti, PW-13 made false allegation of commission of offence of rape on the appellants to save themselves. Therefore, the appellants are entitled to be given benefit of doubt