KAMLESH KUMAR ALIAS KAMAL 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.217/2002, whereby and whereunder the appellants have been held guilty for commission of offence under Section 376(2)(g) of IPC and sentenced them, as described below

(2.) The prosecution case, as unfolded from the impugned judgment and records of the case is that the prosecutrix-Basanti, PW-3 lodged FIR in Ex.P-6 at Police Station Sihawa on 23-02-2002, alleging that on 22-02-2002, she had gone to attend a function along with her friend Sarita in the house of another friend Bhuneshwari, when she was going along with her friend Sarita at about 7.30 in the evening, crossing through the field, appellant Kailash came from behind and caught hold of her, mouth was gagged and then two others accompanying Kailash namely Phagnu Gond and Bhooshan Gond bodily lifted her. Her friend Sarita was also bodily lifted by Kushal Gond, Kamlesh Yadav and Dilip and taken to the agricultural field. Prosecutrix Basanti was taken towards agricultural field and thereafter, she was subjected to rape one after the other by Kailash, Bhushan, Phagnu and Kamlesh. Dilip was asked to watch passers by, so that, no interruption takes place. After the incident, when she was coming back, she met her friend Sarita on the way. The accused-appellants were also moving along with them and at that time, one Indal Sahu met with them. The appellants threatened them not to disclose the incident in the house. The prosecutrix went to the house of Sarita and the incident was informed to the parents of Sarita. Parents of the prosecutrix were also called. Number of villagers gathered. Report could not be lodged as it was late in the night. On the next day, she came to the police station to lodge a report. The prosecutrix was medically examined by Dr. Abha Rani Singh, PW-2 and certain injuries were found on her body. Though, hymen was found intact, vagina was found swelled and red. Upon examination, Dr. Abha Rani Singh, PW-2 prepared report, Ex.P2. Clothes of the prosecutrix-Basanti and that of the appellants were seized.

(3.) Assailing correctness and validity of the impugned judgment of conviction and order of sentence, learned counsel for the appellant argued that the prosecution has failed to prove its case beyond reasonable doubt. According to him, narration of the incident of rape by Basanti, PW-3 is not only improbable, but also suffers from material contradiction and omission and the present is a case of false implication. It is argued that the presence of the prosecutrix alone in the agricultural field in the night itself, raises serious doubt as to what was she doing alone with her friend. Next submission is that her story that she was caught hold of by the appellants and subjected to rape one after the other, is not supported from the nature and extent of injury found in her vagina and other parts of the body. He argued that the injuries are too trivial and Dr. Abha Rani Singh, PW-2 has clearly stated that if the prosecutrix would have been raped by number of persons one after the other, definitely, her hymen would not have remained intact. Further submission is that merely scratch injuries have been found on the body of the prosecutrix, which also does not support the prosecution story of she have been subjected to gang rape by number of persons that too in the agricultural field. Learned counsel for the appellants further argued that the report of Forensic Science Laboratory is not conclusive and mere presence of spermatozoa and seminal stains on the clothes of the prosecutrix, did not establish alleged commission of offence of rape on the prosecutrix. Learned counsel for the appellants would highlight that the evidence of the prosecution witnesses namely Indal Sahu, PW-13 renders probable and plausible the defence raised by the appellants that in fact, the prosecutrix and her friend Sarita had gone towards the agricultural field to meet other boys/their lovers and when the appellants happened to reach at the spot, two boys ran away and when they scolded, Sarita and Basanti for having indulged in secret meeting with certain boys in the night and brought them to their house, the prosecutrix and the other friend Sarita, PW-9, in order to save themselves from all the allegations, falsely implicated the appellants.