The prosecution must prove guilt beyond reasonable doubt; insufficient evidence led to the acquittal of two appellants in a gang rape case.

Judgment :

(Sanjay K. Agrawal, J.)

1. Since these three criminal appeals have arisen out of the common impugned judgment dated 20.08.2019 passed by the Special Judge, Protection of Children from Sesxual Offences Act, 2012, Jashpur, Chhattisgarh in Special Criminal Case under the POCSO Act Cases No.27/2018, they have been clubbed together, heard together and are being decided by this common judgment.

2. Assail in the present three criminal appeals filed under Section 374(2) of the CrPC preferred by the sole appellant Fakal Ram (A-1) in Criminal Appeal No.688 of 2020; the sole appellant Dholi Ram (A-2) in Criminal Appeal No.1466 of 2019 and the two appellants namely Balmiki Bhagat (A-3) and Devanand Bhagat (A-3), is to the legality, validity and correctness of the judgment dated 20.08.2019 passed by the Special Judge, Protection of Children from Sesxual Offences Act, 2012, Jashpur, Chhattisgarh, in Special Criminal Case under the POCSO Act Cases No.27/2018, by which the appellants herein have been convicted for offence under Section 376D of the IPC and sentenced thereunder to suffer rigorous imprisonment for 20 years with fine of Rs.1,000/- each; in default of payment of fine amount the appellants have to undergo additional rigorous imprisonment for three months.

Prosecution story:-

3. On 03.06.2018, at about 7:30 pm at village–Patrapara, Police Station–Bagicha, District Jashpur, Chhattisgarh, all the four appellants in furtherance of their common intention committed gang rape with the victim (PW-1) and thereby committed the offence.

4. It is further case of the prosecution that on 03.06.2018 in the village of the victim there was a marriage function in the house of Karmu in which she had gone to participate and when she went to answer the nature’s call than A-1 Fakal Ram and A-2 Dholi Ram came from her back and gagged her mouth with their hands and thereafter, A-3 Balmiki Bhagat and A-4 Devanand Bhagat came on the spot and took her towards mango tree and all the four appellants committed the sexual intercourse with the her against her wishes. After committing the said act A-3 & A-4 dropped her (victim) at her house. Family members of the victim took her to the hospital and after getting treatment when she gained consciousness, she informed about the incident to her family members. Further, on 05.06.2018, she lodged the written complaint vide Ex.P/1 about the said incident and on that basis FIR was lodged vide Ex.P/2. Spot map was prepared vide Ex.P/17. Victim was medically examined by Dr. V. Bakhla (PW-5) and in her medical report (Ex.P/3) it has been opined by the Dr. V. Bakhla (PW-5) sexual intercourse has been committed with the victim forcefully as the vulva was found abraded and red, vicitim was also complaining pain while examination and vagina was also found abraded and red; hymen was also found ruptured. Slides were prepared and sent for chemical ananlysis. Though, as per radiologist report (Ex.P/6) the age of the victim was between 14 years to 15 years, but as per the finding recorded by the trial Court in paragraph No. 12 of its judgment the prosecution has failed to prove that the age of the victim was less than 18 years on the date and time of offence. Appellants were also medically examined by Dr. Jayant Ram Bhagat (PW-8) and as per doctor all were found capable in doing sexual intercourse. Other articles were also seized. Seized articles were sent for chemical analysis to FSL and as sper FSL report (Ex.P/37) on the underwear of the victim (article A), vaginal slide (article B) & vaginal smear slide (article C) stains of semen and human sperm were found.

5. After due investigation, appellants herein were charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellants / accused persons abjured their guilt and entered into defence.

6. In order to bring home the offence, prosecution has examined as many as 15 witnesses and exhibited 38 documents, wh