The judgment emphasizes the need for stringent evidence and absence of doubt in convicting under Section 376D of IPC, highlighting the importance of contradicting witness statements and the equal treatment of defence witnesses.

JUDGMENT :

SANJAY K. AGRAWAL, J.

1. Invoking criminal appellate jurisdiction of this Court under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, 'CrPC'), the present appeal has been preferred by the two appellants, i.e., A-1 Rajesh Panika (now died) and A-2 Laxman, against the judgment and order dated 9.8.2016 passed by the Additional Sessions Judge (F.T.C.), Surguja (Ambikapur)/Special Judge under Protection of Children from Sexual Offences Act, 2012 in C.Reg. (SPL.ST.POCSO) No.24/2015, by which both the appellants have been convicted for the offences punishable under Section 376D of the Indian Penal Code, 1860 (for short, ‘IPC’) and Section 5(g)/6 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’) and for each of the offences, they have been sentenced to undergo Rigorous Imprisonment for Life with fine of Rs.1000/- and in the event of non-payment of fine amount, to undergo additional Simple Imprisonment for three months, with a direction to run all the sentences concurrently in accordance with law.

2. Both the appellants were charge-sheeted for the aforesaid offences before the Trial Court alleging that on 7.3.2015 at 9:30 a.m. in Village Potka, under the bridge, both of them in furtherance of their common intention, committed gang rape/ penetrative sexual assault on the minor victim (PW-7) punishable under Section 376D of IPC and Section 5(g)/6 of POCSO Act.

3. Case of the prosecution, in nutshell, is that on 7.3.2015 at 9:30 a.m., the victim (PW-7) on her bicycle was going to her uncle Ram Kishore’s house for the purpose of performing some agriculture operation and on way to Jamdai route, on the bridge, A-2 Laxman pulled her bicycle’s carrier on account of which, she fell down and just prior to that, A-1 Rajesh and A-2 Laxman both had smeared colour (gulal) on her (as it was holi festival). Thereafter, A-2 Laxman caught hold of her legs and A-1 Rajesh caught hold of her hands and took her under the bridge and committed sexual intercourse with her forcibly one by one. It is the case of the prosecution that, hearing the hue and cry of the victim, DW-1 Komal Chand who was present in the nearby field at that time to answer the nature’s call, had come to the spot and witnessed the said incident but the appellants abused him to leave from the spot. After committing sexual intercourse with her, the appellants left her and threatened her not to tell about the said incident to anyone and told that they would give money to her. Thereafter, the victim left her bicycle at the place of incident and reached her home and informed her parents about the incident.

4. Subsequently, the matter was reported by PW-1, father of the victim, at Police Station Udaypur where F.I.R. was registered vide Exhibit P-1. Spot Map and Nazri Naksha were prepared vide Exhibits P-17 & P-4. The victim was medically examined by PW-9 Dr. Manorama Minj vide Exhibit P-24 signed by Dr. Shrishti Pande and vaginal slide of the victim was prepared for chemical analysis and seized vide Exhibit P-25. Her underwear was seized vide Exhibit P-21. A-1 Rajesh and A-2 Laxman were also medically examined vide Exhibits P-8 & P-7 and their underwears were seized vide Exhibits P-26 & P-21. Statements of the witnesses were recorded and the appellants were arrested. In F.S.L. report (Exhibit P-31), stains of semen and human sperms were found on the undergarment and vaginal slide of the victim vide Exhibit-A & Exhibit-B as well as on the undergarments of A-1 Rajesh and A-2 Laxman vide Exhibit-C and Exhibit-D.

5. After completion of the investigation, the appellants were charge-sheeted before the Trial Court for the aforesaid offences and the matter was put to trial and its disposal in accordance with law, in which the appellants abjured their guilt, took a plea of false implication and entreated for trial.

6. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 10 witnesses as PW-1 to P-