2024:CGHC:47236-DB Digitally signed by PRAKASH KUMAR NAFR Date: 2024.12.05

14:36:00 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 179 of 2019

1. Kopa Madkam S/o Madkam Boti, aged about 25 years, 2. Korsa Suresh S/o Korsa Kistaiyya, aged about 25 years, (Both are R/o Village Jabbapara, Modakpal, P.S. Modkapal, District Bijapur, Chhattisgarh, ... Appellants versus • State of Chhattisgarh Through The Police Station Modakpal, District Bijapur, Chhattisgarh, ... Respondent For Appellants : Mr. Mirza Kaiser Baeg, Advocate For State/Respondent : Mr. Amit Buxy, Panel Lawyer Division Bench Hon'ble Shri Justice Sanjay K. Agrawal &

Hon'ble Shri Justice Radhakishan Agrawal, Judgment On Board (02.12.2024)

Sanjay K. Agrawal, J

1. Assail in the present criminal appeal filed under Section

374(2) of the CrPC preferred by the appellants-accused, is to the legality, validity and correctness of the judgment dated 22.12.2018 passed by the Additional Sessions Judge (F.T.C.), Dantewada, South Bastar, Dantewada, Chhattisgarh, in Special Sessions Trial No.02/2015 by which the appellants have been convicted for offence under Section 376-D of the IPC read with Sections 5(g), 6 of POCSO Act, however, they have been sentenced only for offence under Section 376-D of the IPC to undergo imprisonment for life (meaning thereby imprisonment for the rest of life of the appellants) with fine of Rs.100/- each, in default of payment of fine amount to further undergo additional rigorous imprisonment for one month each.

2. Case of the prosecution, in short, is that on 03.02.2015 at about 7:00 PM, at village Jabbapara, Modakpal, Police Station Modakpal, District Bijapur, Chhattisgarh, the appellants-accused persons committed gang rape with the minor victim girl (PW-01) and thereby committed the offence.

3. Further, case of the prosecution is that, mother of the victim (PW-02) along with her daughter (PW-01) reported the matter to the police and FIR (Ex.P/01) was registered by the police against the appellants and wheels of investigation started running, in which, spot map was prepared vide Ex.P/06. The appellants No.1 & 2 were arrested vide Ex.P/25 and Ex.P/26 respectively. After obtaining necessary consent vide Ex.P/05, the victim girl (PW-01) was subjected to medical examination, which was conducted by Dr. Smt. Arpita Lagoo (PW-07) and as per M.L.C. report (Ex.P/07) of the victim, it has been opined that no injury was present over her private part and definite opinion regarding recent sexual intercourse neither be confirmed nor reflected, as hymen is old torn. Further victim’s vaginal slides were prepared and handed over to the police for analysis. Further, as per the M.L.C. report (Ex.P/29), proved by Dr. Mariyam Vtasla (PW-12), Associate Professor, Department of Psychiatry, the victim (PW-01) is mentally retarded and is suffering from psychosis (mental illness). Vide seizure memo Ex.P/02, one orange colour salwar suit and undergarment of the victim (PW-01) were seized and vide seizure memo Ex.P/14 & Ex.P/16, undergarments of the appellants No.1 & 2 were also seized respectively, and the same were sent for chemical examination vide Ex.P/27 and as per F.S.L. report (Ex.P/28), stains of human semen were found on articles A1, B2, C and D. To ascertain the age of the victim (PW-01), photocopy of admission register vide Ex.P/09 and X-ray report vide Ex.P/12 were called and as per the radiologist report, age of the victim (PW-01) was reported to be above 13 years but less than 16 years.

4. Thereafter, statements of the witnesses were recorded and after due investigation, the 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 abjured their guilt and entered into defence.

5. In order to bring home the offence, prosecution has examined as many as 12 witnesses and exhibited 29 documents, whereas, defence, in support of its case, has not ex