SUBHASH Vs. STATE

JUDGEMENT

(1.) The appellants-Subhash and Shri Chand @ Siriya impugn their conviction and sentence in Sessions Case No.1/1997 arising out of FIR No.404/1996 by which they were convicted for committing offence punishable under Section 376 (2) (g) IPC and sentenced to undergo RI for ten years with fine Rs. 5,000/- each.

(2.) Allegations against the appellants were that they along with Surjeet committed rape upon 'X' (assumed name) on 15.09.1996 at 07:30 P.M. in a vacant DDA flat near Sabzi Mandi. 'X' with her parents went to the police station around 11:30 P.M. and lodged complaint (Ex.PW-1/A) alleging that when she was returning after purchasing vegetables from the vegetable market, Surjeet, Siriya and Subhash raped her against her wishes. She was medically examined. The Investigating Officer prepared rukka and lodged First Information Report. During the course of investigation, all the culprits were arrested. Statement of the prosecutrix was recorded under Section 164 Cr.P.C. Exhibits were sent for examination to Forensic Science Laboratory and reports were collected. On completion of the investigation, charge sheet was submitted. The appellants were duly charged and brought to trial. Prosecution examined 11 witnesses to prove the charge. In the 313 Cr.P.C. statement, the appellant-Subhash pleaded false implication and stated that about 15days prior to the alleged occurrence, his two pigs were caught by the prosecutrix's father. A quarrel took place between them. On 15.09.1996 when he was sleeping in his house, the police took him to the police station and falsely implicated in this case. He examined three witnesses in defence. Appellant Shri Chand @ Siriya stated that about 10/15 days back a quarrel took place between his son and father of the prosecutrix but the matter was pacified with the intervention of the mohalla people. On appreciating the evidence and considering the rival contentions of the parties, by the impugned judgment, the appellants were held responsible for committing offence under Section 376 (g) IPC and sentenced as mentioned previously.

(3.) Learned counsel for the appellants while challenging the impugned judgment urged that the Trial Court did not appreciate the evidence in its true and proper perspective and relied upon the testimony of the prosecutrix and her parents without ensuring their credibility. The place of incident was situated in a busy commercial area and it is unbelievable that the three accused would commit rape upon the prosecutrix there. Had the prosecutrix been raped by three assailants as alleged, she must have suffered vital injuries on her person. However, in the MLC ((Ex.PW-5/A)) no injuries were found on her vital organs. The complaint lodged by the prosecutrix's parents was motivated due to quarrel which took place about 15 days prior to the incident over lifting of pigs. The prosecutrix has made substantial improvements in the court. She is a tutored witness. There is variation in the version given in the statement under Section 164 Cr.P.C. No independent public witness was associated at any stage of inquiry. The FSL report does not establish appellant's involvement. PW-5 (Dr.Usha) specifically recorded that the prosecutrix was conscious and had no fresh injury. 'X' did not disclose names of the culprits to the doctor.