C A V Judgment

01/10/2021 As both these appeals arise out of a common judgment dated

09-03-1999 passed by the Special Judge SC/ST (Prevention of Atrocities Act) Surguja, District Ambikapur in S.T. No. 90/98, whereby convicting the accused/appellants under Section 376(2)(g) IPC and sentencing each of them to undergo RI for 10 years and to pay fine of Rs. 2,000/- plus default stipulation, they are being disposed of by this common judgment.

2. As per prosecution case, on 30.05.98 at about 7.00 p.m. the prosecutrix, aged about 17 years has gone to attend the prayer held at village Karamdeepa Pachawal along with his brother Arjun Dayakar and other villagers. It is stated that at about 11.00 p.m. when she was returning along with her friend Susheela, on the way 4-5 boys came and two of them namely Babulal and Banshidhar caught hold of her friend Susheela and took her to the backside of a nearby house and when she shouted, they ran away from there whereas the other accused persons namely Raju Yadav, Dinesh Soni and Basumar caught her and took near the tamarind tree. It is further stated that the other accused persons also came there and surrounded her, Babulal threw her on the ground and after removing her clothing committed rape on her. At that point of time, Sangeeta, Vijay and Daniel reached there searching and on seeing them, the accused persons ran away. Complainant has stated that her mouth was closed and therefore she was not able to raise alarm. FIR was lodged against the appellants on the next day at police station Balrampur under Sections 376 (2)(g) IPC and 3(1)(XII) of the SC/ST (Prevention of Atrocities) Act. After filing of charge sheet, the trial judge has framed charge against the appellants under Sections 376(2)(g) and 147 IPC and 3(1)(XII) and 3 (2)(v) of the SC/ST (Prevention of Atrocities) Act.

3. In order to establish the guilt of the accused/appellants, prosecution has examined 11 witnesses. Statement of the accused/appellants were recorded under Section 313 of the Cr.P.C. in which they denied the charges levelled against them and pleaded their innocence and false implication in the case.

4. After hearing the parties, the trial Court by judgment impugned, has acquitted the appellants under the provisions of Atrocities Act but has convicted and sentenced them as mentioned in paragraph 1 of the judgment. Hence the present appeals.

5. Counsel for the appellants in Cr.A. No. 849 of 1999 submits that the Court below has erred in law, facts and material on record. The statement of the witnesses are not reliable and are contradictory. He submits that the doctor did not find any injury on the body of the proseuctrix and the trial court has convicted the appellants under Section 376 (2)(g) IPC which is a gross error. The prosecution has failed to establish the ingredients of Section 376 (2)(g) IPC beyond reasonable doubt. The independent witnesses PW-6 and PW-11 have not supported the version of the prosecutrix but the court below has adopted the theory of pick and choose and only that part of testimony has been considered which supports the prosecution case. The findings of the trial court are totally perverse therefore the conviction of the appellants be set aside.

6. Counsel for the in Cr.A. No. 1114 of 1999 submits that there is no allegation against the present appellant regarding the commission of rape but the learned trial court has convicted him for the said offence. He submits that the appellant has not committed the offence nor supported any of the accused persons and therefore the conviction of the appellant be set aside. Reliance has been placed in the matter of Sanjay Pathak Vs. State of CG reported in 2006(1)CGLJ 375; Devinder Singh and Others Vs. State of Himachal Pradesh reported in (2003) 11 SCC 488 and Lalliram and Another Vs. State of Madhya Pradesh reported in (2008) 10 SCC 69.

7. On the other hand, State counsel while supporting the judgment impugned has submitted that the findings recorded by the Court bel