Criminal Appeal Nos. 1661 and 1687 of 2000. Case: Dhiraj Singh and Ors. Vs The State of M.P.. Chhattisgarh High Court

Case Number:Criminal Appeal Nos. 1661 and 1687 of 2000
Party Name:Dhiraj Singh and Ors. Vs The State of M.P.
Counsel:For Appellant: Indira Tripathi, Advocate and For Respondents: Lav Sharma, Panel Lawyer
Judges:Rajendra Chandra Singh Samant, J.
Issue:Code of Criminal Procedure, 1973 (CrPC) - Sections 161, 164, 313, 437A; Indian Evidence Act, 1872 - Section 9; Indian Penal Code 1860, (IPC) - Sections 375, 376, 376(2)(g)
Judgement Date:March 01, 2017
Court:Chhattisgarh High Court
 
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Judgment:

Rajendra Chandra Singh Samant, J.

  1. Both the appeals have arisen out of a common judgment passed in Sessions Trial No. 85 of 1998 by the First Additional Sessions Judge, Raigarh on 28.6.2000 convicting the Appellants in both the appeals for the offence punishable under Section 376(2)(g) IPC and sentenced them to undergo rigorous imprisonment for 10 years along with fine of Rs. 500/- each, with default stipulations.

  2. The case of the prosecution in brief is this, that prosecutrix (P.W. 6) (name withheld) and her friend Mayawati (P.W. 13) came to Raigarh from their village Bade Hardi without informing their parents. Age of the prosecutrix on the date of incident was 13 years. On arrival at Raigarh, both of them were on way the to the residence of sister of Mayawati (P.W. 13) who resided in Madhubanpara at Raigarh, when they met with Vijaydas (since deceased). Vijaydas took them to Tara Studio where both the girls were photographed. Then all of them had some snacks in a hotel. At about 8.00 pm in the night, on pretext of taking the prosecutrix and her friend to their destination, Vijaydas and Dukalu Ram Sidar took them to a field nearby the pond. Vijaydas raped the prosecutrix and Dukalu Ram Sidar at the same time took Mayawati (P.W. 13) in another field and raped with her. After this incident, while they were coming back they were stopped by five boys and on their threatening, Vijaydas and Dukalu Ram Sidar fled from the spot. One of the boys i.e. Sukhdeo and another was Dhiraj. Both of them took prosecutrix (P.W. 6) and her friend Mayawati (P.W. 13) towards the field. Dhiraj took the prosecutrix (P.W. 6) separately and committed rape with her and Sukhdeo took Mayawati (P.W. 13) separately on the field and forcefully committed rape with her. After this incident, prosecutrix (P.W. 6) and her friend Mayawati (P.W. 13) were brought and left in the bus-stand and from there somehow, they reached to the residence of Anju (P.W. 4) i.e. sister of Mayawati (P.W. 13). Later on, prosecutrix (P.W. 6) came to the Police Station, Raigarh for lodging the First Information Report vide Exhibit P/11.

  3. Investigation was conducted. Prosecutrix was medically examined by Dr. (Smt.) Arti Nande (P.W. 17) vide report Exhibit P/24 which was positive for sexual intercourse. Ossification test of prosecutrix was conducted by Dr. M.D. Joshi (P.W. 5) vide his report Exhibit P/8. He opined that age of the prosecutrix (P.W. 6) was between 15 to 16 years. He also examined Appellant Dhiraj Singh and Sukhdeo vide Exhibits P/9 and P/10 about their competence to indulge in sexual intercourse and gave positive report. Some articles were seized from accused Vijaydas vide Exhibits P/1 and P/2. Underwear of Appellant Dhiraj Singh was seized vide Exhibit P/3. Undergarment of the prosecutrix was seized vide Exhibit P/14. Vaginal slides prepared by Dr. (Smt.) Arti Nande (P.W. 17) were seized vide Exhibit P/5. In proof of age, photocopy of mark-sheet of the prosecutrix was seized vide Exhibit P/18(c). Photographs of the prosecutrix (P.W. 6) and her friend Mayawati (P.W. 13) were seized vide Exhibits P/12, P/13 and P/14. Statement of the prosecutrix under Section 164 Cr.P.C. was recorded on 4.4.1998 in which she stated that accused Kamal Kumar Verma had committed rape with her. On completion of the investigation, both the Appellants and co-accused Vijaydas were charge-sheeted.

  4. Trial Court framed charges under Section 376(2)(g) IPC against the Appellants and co-accused Vijaydas. On denial of charges, prosecution has examined as many as 17 witnesses. On examination under Section 313 Cr.P.C., Appellants in both the cases denied all the incriminating evidence against them, pleaded innocence and false implication. One witness was examined in defence. Impugned judgment was passed, by which Appellants in both the cases have been convicted and sentenced as aforementioned. Co-accused Vijaydas expired during the pendency of trial, hence, the case against him was abated.

  5. The grounds of appeal in both the cases are that there had been no evidence with the prosecution to hold conviction against the Appellants. Judgment of conviction and order of sentence passed by the trial Court is not based on legal admissible evidence and the Appellants have been falsely implicated in the...

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