Chattisgarh High Court
Gocharan Rathiya vs The State Of Chhattisgarh on 11 February, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
Digitally signed by
V PADMAVATHI
Date: 2026.02.19
10:53:45 +0530
2026:CGHC:7525-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1518 of 2022
Nutan Rathiya S/o Lalit Rathiya, Aged About 18 Years R/o Village Baihamuda, Police
Station And Tahsil Gharghoda,, District : Raigarh, Chhattisgarh --- Appellant(s)
versus
State Of Chhattisgarh Through Police Station Gharghoda,, District : Raigarh,
Chhattisgarh --- Respondent(s)
CRA No. 1545 of 2022
Sugan Sai Sai Rathiya S/o Bharat Rathiya Aged About 21 Years R/o Village -
Baihamuda, Tahsil And Police Station - Gharghoda, District - Raigarh, Chhattisgarh.
--- Appellant(s)
Versus
The State Of Chhattisgarh Through Police Station - Ghargoda, District - Raigarh
Chhattisgarh. --- Respondent(s)
CRA No. 1866 of 2022
Madhav Rathiya S/o Babulal Rathiya Aged About 21 Years R/o Village Baihamuda,
P.S. And Tahsil Gharghoda, District Raigarh, (C.G.) --- Appellant(s)
Versus
State Of Chhattisgarh Through Police Station Gharghoda, District Raigarh, (C.G.)
--- Respondent(s)
CRA No. 998 of 2023
1 - Gocharan Rathiya S/o Deshanter Rathiya Aged About 20 Years R/o. Village -
Baihamuda, Tehsil And Police Station - Gharghoda, District - Raigarh Chhattisgarh
2 - Sanjay Rathiya S/o Chintaram Rathiya Aged About 19 Years R/o Village -
Baihamuda, Tehsil And Police Station - Gharghoda Raigarh Chhattisgarh
--- Appellant(s)
Versus
The State Of Chhattisgarh Through - Police Station - Gharghoda, District Raigarh
Chhattisgarh
---Respondent(s)
(Cause-title taken from Case Information System)
Cra 1518 of 2022 and connected cases
2
-----------------------------------------------------------------------------------------------------------------------
For Respective Appellants : Shri BS Rajput, Shri Aman Kesharwabni,
and Shri Ashutosh Mishra, Advocates
For Respondent/State : Shri SS Baghel, GA
--------------------------------------------------------------------------------------------------------------
Hon'ble Shri Ramesh Sinha, Chief Justice
Hon'ble Shri Justice Ravindra Kumar Agrawal
Order on Board
Per Ravindra Kumar Agrawal, J.
11.02.2026 Heard BS Rajput, Shri Aman Kesharwabni, and Shri Ashutosh Mishra, learned counsel for the respective appellants. Also heard Shri SS Baghel, learned Government Advocate appearing for the respondent/State.
1. All these appeals are arising out of the same Session Trial, and a common judgment, therefore, they are being heard, and decided together.
2. In these cases there are five accused persons and all of them have been convicted by the learned trial court and they filed separate appeals. CRA-1518 of 2022 has been filed by the appellant- Nutan Rathiya, CRA- 1545 of 2022 has been filed by the appellant-Sugan Sai Rathiya, CRA-1866 of 2022 has been filed by the appellant-Madhav Rathiya, and CRA-998 of 2023 has been filed by the appellants- Gocharan Rathiya and Sanjay Rathiya. Hereafter, appellants are referred to as "Nutan, Sugan Sai, Madhav, Gocharan and Sanjay".
3. Appellants have filed these appeals against the judgment of conviction and order of sentence dated 08.08.2022 passed by the learned Additional Cra 1518 of 2022 and connected cases 3 Session Judge, Gharghoda, District-Raigarh, in Special Criminal Case (POCSO)-13 of 2019, whereby the appellants have been convicted and sentenced as under with default stipulation:
Appellant- Nutan in CRA-1518 of 2022 Conviction Sentence Under Section 457 /34 IPC RI for 05 years and to pay Rs.500/-
Under Section 506 Part II IPC RI for 03 years and to pay Rs.500/-
Under Section 6 of the POCSO Life imprisonment (meaning
Act thereby imprisonment for
remaining life time of accused)
and to pay Rs.1,000/-
Appellant- Sugan Sai in CRA-1545 of 2022
Conviction Sentence
Under Section 457 /34 IPC RI for 05 years and to pay
Rs.500/-
Under Section 506 Part II IPC RI for 03 years and to pay
Rs.500/-
Under Section 6 of the POCSO Life imprisonment till natural
Act death and to pay Rs.1,000/-
Appellant- Madhav in CRA-1866 of 2022
Conviction Sentence
Under Section 457 /34 IPC RI for 05 years and to pay
Rs.500/-
Under Section 506 Part II IPC RI for 03 years and to pay
Rs.500/-
Under Section 6 of the POCSO Life imprisonment (for the
Act remainder of his natural life) and
to pay Rs.1,000/-
Cra 1518 of 2022 and connected cases
4
Appellants- Gocharan and Sanjay in CRA-998 of 2023 Conviction Sentence Under Section 457 /34 IPC RI for 05 years and to pay Rs.500/-
Under Section 506 Part II IPC RI for 03 years and to pay Rs.500/-
Under Section 6 of the POCSO Life imprisonment till natural
Act death and to pay Rs.1,000/-
4. Brief facts of the case are that, on 18.04.2019 the victim PW1 lodged a report to the Police Station-Gharghoda against the accused persons with the allegation that on 17.04.2019 at about 10.00 pm, all the accused persons broke open the door of her house, gagged her mouth and committed rape upon her one after one. Three accused persons- Gocharan, Sanjay and Sugan Sai committed rape upon her one after one. When they heard some noise of the motorcycle in the lane, they fled away from the back side.
Thereafter, parents and sister of the victim came to the house, and she informed the incident to them. She filed a written complaint Ex.P1, based on which FIR Ex.P2 was registered against five accused persons for the offence under Sections 376, 506 of the IPC and Sections 4 & 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, 'POCSO Act'). Victim was sent for her medical examination to the Community Health Centre, Gharghoda. However, no lady doctor was available there at that time and therefore, she was referred to the Community Health Centre, Tamnaar or KGH Hospital Raigarh, subject to availability of a lady doctor. Then she was medically examined by Dr.Amaravatin Kurrey, PW9 at the District Hospital Cra 1518 of 2022 and connected cases 5 Raigarh, who gave her MLC report Ex.P17. While medically examining the victim, doctor has noticed no fresh injury on the perennial region, Hymen torn (seems freshly torn), hymenal margin looking reddish, slight blood oozing present and she opined that there is physical evidence of sexual assault present, hymen torn, hymenal margin looking reddish may be due to sexual intercourse, and further confirmation required. Two slides of her vaginal swabs were prepared, sealed, and handed over to the police for their chemical examination. Spot map Ex.P3 was prepared by the police. With respect to victim's age and date of birth, police has seized progress report card of Primary School, Baihamuda vide seizure memo Ex.P5 in which date of birth of the victim is mentioned as 10.10.2005. The school register Ex.P13 has also been seized from the school vide seizure memo Ex.P.12 and after retaining its attested true copy Ex.P13C, the original register has been returned back.
5. The accused persons were arrested on 19.04.2019 and they too have been sent for their medical examination to the Community Health Centre, Gharghoda, where they were medically examined by Dr VK Sharma, Medical Officer, who gave his MLC report and found them able to make sexual relation. The MLC reports of Gocharan, Sugan Sai and Sanjay are, Ex.P18, Ex.P19 and Ex.P20 respectively. The semen slides of the accused persons Gocharan, Sugan Sai and Sanjay have been prepared by the doctor and sent for their chemical examination. The vaginal slides of the victim, her pubic hair, her underwear; semen slides of the accused persons Gocharan, Sugan Sai and Sanjay and their underwear were seized from Cra 1518 of 2022 and connected cases 6 them which have also been sent for their chemical examination to the Regional FSL Bilaspur, from where report Ex.P27 was received and except pubic hair of the victim, semen and sperm were found on all other articles.
6. Statement of the witnesses under Section 161 CrPC and statement of the victim under Section 164 of the CrPC Ex.P4 have been recorded and after completion of usual investigation, charge-sheet was filed against all the five accused persons for the offence under Sections 376D, 457 and 506 IPC and Sections 4 & 6 of the POCSO Act before the learned trial court.
7. The learned trial court has framed charges against the accused persons for the offence under Sections 457, 34, 376D, 506 Part-II of the IPC and Section 6 of the POCSO Act. The accused persons denied the charge and claimed trial.
8. In order to prove the charges against the accused persons, prosecution has examined as many as 14 witnesses. Statement of the accused persons have also been recorded in which they denied the circumstances appearing against them, pleaded innocence and submitted that they have been falsely implicated in the offence.
9. After appreciation of oral and documentary evidence led by the prosecution, the learned trial court convicted the accused persons and sentenced them as mentioned in the earlier part of this judgment. Hence these appeals by the appellants.
Cra 1518 of 2022 and connected cases 7
10. Learned counsel for the respective appellants would jointly submit that prosecution has failed to prove the offence framed against the accused persons beyond any reasonable doubt, there are material omissions and contradictions in the evidence of the prosecution witnesses which cannot be made basis to convict the appellants for the offence in question. Whole prosecution story is a improbable story, developed by the prosecution that in the night, accused persons broke open door of the house of the victim and committed the alleged offence upon her, which is not possible for the reason that the house of the victim is situated in a dense locality, adjacent to the house of others, and there is no evidence of any other witness hearing the noise. They would further submit that as per the allegation made by the victim, she along with her sister were there in the house on the date of incident but her sister has not informed to other persons of the vicinity about the incident. The entire conduct of the victim is suspicious. There is no external injury found on the body of the victim and no sign of any struggle was noticed by the doctor while examining the victim. Other witnesses have stated that there was an incident of theft in the house of the victim and there is no report with respect to any offence of theft which was allegedly occurred in the house of the victim that makes the entire case of the victim doubtful. From the evidence of the victim, it has not come that she made any alarm to call other persons for help and it is only when the accused persons allegedly fled away from the place, she informed the incident to others. The manner in which the alleged incident is said to have been committed, that the victim has not suffered any external injury found on her body, create suspicion over the prosecution case. There is material contradiction in the FIR as well Cra 1518 of 2022 and connected cases 8 as her deposition. In the FIR she disclosed that all the accused persons entered into her house, however, in her deposition she disclosed that only three persons entered into her room, while two persons were outside her house. Though there is semen and sperms were found on her vaginal swab of the victim and other articles but the prosecution could not prove that it was the semen and sperm of the accused persons by conducting their DNA test. Therefore, in absence of any sufficient evidence, appellants cannot be convicted and they are entitled for their acquittal.
11. On the other hand learned state counsel opposes the submission made by the learned counsel for the respective appellants and submitted that prosecution has proved its case beyond any reasonable doubt. But for minor omissions or contradictions evidence of the victim as well as other witnesses are reliable to convict the appellants for the offence in question. Prompt report has been lodged by the victim naming the accused persons who committed the offence. Injuries have been found on private part of the victim and FSL report has also been found positive that in the vaginal swab of the victim semen and sperm have been found. Her evidence has duly supported the prosecution case. Even if no external injuries were found or noticed by the doctor, in the offence of gang rape, it does not have any bearing, particularly when five accused persons committed gang rape upon the victim. There is no reason for false implication of the appellants, and the injuries on private part of the victim have duly supported the prosecution case. Victim was held to be minor on the date of incident and subjected to gang rape by the accused persons, for which learned trial court has rightly Cra 1518 of 2022 and connected cases 9 convicted and sentenced them which does not suffer from any infirmity, and the appeals are liable to be dismissed.
12. We have heard learned counsel for the parties and perused the record of the trial Court with utmost circumspection.
13. The first and foremost question arises for consideration is the age of the victim as to whether she was minor on the date of incident and less than 18 years of age or not. Although in a case of gang rape, the consent of the victim don't have any role or bearing, and the age is relevant for the purposes of determination of her consent, if the allegation of rape is there but not in the gang rape. From the evidence produced by the prosecution, victim appears to be minor and 13 years 6 months of age. The school register Ex.P13C bears her date of birth as 10.10.2005, which is sought to be proved by PW6 who was the Headmaster of the school, he proved the school register Ex.P13C which has been seized by the police during the investigation but in his cross-examination he admitted that entries in the school register are not in his handwriting but they are made by the earlier Headmaster Theerath Ram Karsh. The victim was admitted in class-6 on the basis of her Transfer Certificate of Class-V. He admitted that at the time of her admission her birth certificate has not been produced. In the Transfer Certificate, date of birth of the Victim was mentioned as 10.10.2005. From the evidence of this witness though the entries have not been made by him but the defence could not be able to rebut the date of birth entry into the school register that date of birth of the victim is 10.10.2005. Victim-PW1 has stated in her evidence that her date of birth is 10.10.2005 and she is aged Cra 1518 of 2022 and connected cases 10 about 14 years. Her date of birth and age have not been specifically challenged by the accused persons that she disclosed wrong date of birth and she is not at the age of 14 years. In absence of any challenge of her date of birth and age in her cross examination by the accused persons it can safely be said that the entries made in the school register are correct entries with respect to her date of birth.
14. PW2 is mother of the victim, who has not disclosed any date of birth or age of the victim. PW4 is the father, who in his cross- examination, stated that victim is his youngest daughter, and he did not know his own date of birth or the date of birth of his children. Although her father has also did not state anything about age of the victim but as has been observed earlier that the date of birth and age disclosed by the victim have not been challenged by the defence in her cross-examination, which is also corroborated by the school register Ex.P13C, proved by PW6 Head Master of the school.
15. The learned trial court has also found that victim was minor on the date of incident and less than 18 years of age which does not suffer from any perversity in view of the evidence available on record and we, therefore, affirm the finding recorded by the learned trial court that as per the definition given in Section 2(d) of the POCSO Act, the victim comes under the definition of 'Child' and she was minor, and less than 18 years of age on the date of incident.
16. So far as the allegation of gang rape, we again examine the evidence of the victim as well as the other prosecution witnesses.
Cra 1518 of 2022 and connected cases 11
17. In the present case FIR Ex.P2 was lodged by the victim on the basis of her written report Ex.P1. From perusal of Ex.P1, it clearly reveals that she made allegations against all the five accused persons naming in the written complaint that on the date of incident the accused persons came to her house, broke open the door and trespassed her house, thereafter, her sister ran away from back door and when she tried to hide herself behind the Almirah, accused-Gocharan, caught hold of her and when she about to shout, he threatened her that he will kill her. He gagged her mouth, and accused-Sugan Sai laid her down on the ground, and Gocharan, Sanjay and Sugan Sai committed rape upon her one after one. At the same time, when they heard noise of motor cycle from the lane, all the accused persons fled away from the back side. Thereafter her parents, sister and other relatives came to her house and then she informed the incident to them. Similar is the statement made by the victim in her 164 CrPC statement Ex.P4. In her statement she alleged that when 3 accused persons committing rape upon her inside the house, 2 accused persons Nutan and Madhav were standing near the door, guarding the situation. In her deposition victim reiterated her allegation and stated that on the date of incident when she was sleeping in her house, at about 10 pm, she heard the noise of breaking the door. Accused Sugan Sai, Gocharan and Sanjay entered into her room and accused Madhav and Nutan were standing near the door. All the 3 accused persons committed rape upon her one after one and when she tried to save herself, the accused persons who were guarding the situation, Madhav and Nutan came there and pulled her legs. She tried to hide herself behind the almirah but Gocharan came there and gagged her mouth. At that time, they Cra 1518 of 2022 and connected cases 12 heard the noise of motor cycle and the accused persons fled away from her house. She informed the incident to her neighbor that thieves have entered into her house. They came to her house and took her with them. After sometime when her parents came back, she informed the incident to them and they informed the police.
In her cross-examination she admitted that she informed her neighbors that thieves have entered into her house and she did not disclose about any offence of rape committed upon her. She further admitted that till the time when she was in the house of her neighbor, she didn't disclose about the incident of rape to her parents. She disclosed before the Police that accused Nutan and Madhav were standing near the door. She admitted the suggestion given by the defense that after about 1 hour of going outside of her parents, the accused persons entered into her house and they stayed there for about 15 minutes. She further voluntarily stated that they stayed there for about 3 hours. At this stage, a note has been appended by the learned trail court that the victim couldn't understand the difference between the hour and minutes. In her entire cross-examination the defence couldn't able to rebut substantive evidence of the victim that on the date of incident all the accused persons came to her house, out of which 3 accused persons Sugan Sai, Gocharan and Sanjay raped her one after the other, while other 2 accused persons Nutan and Madhav were guarding the situation.
18. It is not the case that the victim had lodged the report after 2-3 days, so that she may frame the story to implicate the accused persons falsely, or she may have any reasons for false implication of the appellants. Though a Cra 1518 of 2022 and connected cases 13 suggestion was given to her that on the date of incident thieves have entered into her house who committed theft of Rs.5,000/- and she disclosed her neighbor also that thieves have entered into her house but in the circumstances when the victim suffered by the offence of gang rape by 5 accused persons in the night when she and her sister were alone at home, her parents are likely to come and she takes shelter in the house of her neighbor, non-informing about the incident to her neighbor, doesn't absolve the accused persons from their liability, or dilute the offence, as immediately after coming of her parents, she informed the incident to them. Thereafter, on the very next day, she lodged the report of the incident, naming all the accused persons. But for minor omissions or contradictions, she remain firm in alleging the accused persons that they committed gang rape upon her and one cannot expect from the victim of the offence of gang rape that she should have narrated the incident verbatim as has been disclosed in the FIR or 161 or 164 statement of the CrPC, particularly when the evidence was recorded after about 5-6 months of the incident.
19. In the matter of State of Himachal Pradesh Vs Sanjay Kumar @ Sunny (2017) 2 SCC 51, Hon'ble Supreme Court has held that:
"30. By no means, it is suggested that whenever such charge of rape is made, where the victim is a child, it has to be treated as a gospel truth and the accused person has to be convicted. We have already discussed above the manner in which testimony of the prosecutrix is to be examined and analysed in order to find out the truth therein and to ensure that deposition of the victim is Cra 1518 of 2022 and connected cases 14 trustworthy. At the same time, after taking all due precautions which are necessary, when it is found that the prosecution version is worth believing, the case is to be dealt with all sensitivity that is needed in such cases. In such a situation one has to take stock of the realities of life as well. Various studies show that in more than 80% cases of such abuses, perpetrators have acquaintance with the victims who are not strangers. The danger is more within than outside. Most of the time, acquaintance rapes, when the culprit is a family member, are not even reported for various reasons, not difficult to fathom. The strongest among those is the fear of attracting social stigma. Another deterring factor which many times prevent such victims or their families to lodge a complaint is that they find whole process of criminal justice system extremely intimidating coupled with absence of victim protection mechanism. Therefore, time is ripe to bring about significant reforms in the criminal justice system as well. Equally, there is also a dire need to have a survivor centric approach towards victims of sexual violence, particularly, the children, keeping in view the traumatic long lasting effects on such victims.
31. After thorough analysis of all relevant and attendant factors, we are of the opinion that none of the grounds, on which the High Court has cleared the respondent, has any merit. By now it is well settled that the testimony of a victim in cases of sexual offences Cra 1518 of 2022 and connected cases 15 is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance {See Bhupinder Sharma Vs State of Himachal Pradesh, (2003) 8 SCC 551. Notwithstanding Cra 1518 of 2022 and connected cases 16 this legal position, in the instant case, we even find enough corroborative material as well, which is discussed hereinabove.
20. Back in the year 1996 Hon'ble Supreme Court in the matter of State of Punjab Vs Gurmit Singh and others, 1996 2 SCC 384, has held that:
"21. OF late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspirers confidence, it must be relied upon without seeking corroboration of her statement in Cra 1518 of 2022 and connected cases 17 material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
21. PW3 is sister of the victim, who was there with the victim at the time of incident. She stated in her evidence that on the date of incident, her parents had gone to the fields and she along with her sister were sleeping in the house. At about 10 pm, they heard the noise of breaking the door and saw that accused Sugan Sai, Gocharan and Sanjay entered into their room. Gocharan and Sugan Sai caught hold of the victim and Sanjay caught hold of her. Somehow she came out from the clutches of Sanjay and ran away from there. At that moment she saw that accused persons Nutan and Madhav were standing near the door and guarding the situation. Therefore, she flee from the place from backside. Nutan and Madhav after chasing her for some distance, they returned back. She hides herself in a field, and after some time when she returned back, she could not find her sister there and at that time her neighbor, and his wife came there, took them. Her neighbor had gone to the field to inform her parents and when her parents came there, they informed the incident.
Cra 1518 of 2022 and connected cases 18 Though in her cross-examination she too has stated has her sister had not informed the incident to her neighbour but that itself does not give any benefit to the defence for the reason that the victim could have been trusted only upon her parents and did not disclose the incident of rape to her neighbors. The defence tried to bring the contradictions from her 161 statement Ex.P8, but from perusal of her 161 statement, it transpires that she disclosed the incident to the police and her statement was recorded on 19.04.2019 which is the very next day after lodging of the report. In the said statement, she alleged the incident and the manner in which it has been committed. Though there are minor discrepancies in the manner in which the offence has been committed but that itself is not sufficient to discard her evidence that she witnessed the accused persons entering her house and considering their act, she fled away from the scene and her sister suffered the offence of gang rape by the accused persons. The presence of accused persons on the spot could not be rebutted by the defence in her cross examination and she duly supported the case of the prosecution.
22. PW5 is neighbor of the victim. He too has stated that on the date of incident at about 9.00 pm victim came towards his house by shouting and informed him that thieves have entered into her house and her parents had gone to the fields. She asked him to call her parents. He took her parents to her house and went back to their own house.
In cross-examination, he admitted that except the entrance of the thieves in her house, the victim didn't disclose any other incident. Though the victim didn't disclose the incident to this witness but his evidence Cra 1518 of 2022 and connected cases 19 completely corroborated with the evidence of victim PW1 and PW3 her sister that they didn't disclose about the incident to their neighbor, and only the entrance of the thieves have been informed to them which PW5 also reiterated.
23. PW2 is the mother of the victim and PW4 is the father who came later on and they have been informed by the victim about the incident. Thereafter, they informed the police and then police proceeding was started.
24. PW9 Dr Amravatin Kurre, who medically examined the victim, has found certain injuries on the private part of the victim, her hymen was freshly torn and bleeding present. She opined that the victim suffered from sexual assault. In her cross-examination she admitted that the victim suffered from rupture of her hymen within 12 to 24 hours. Though she admitted in her cross-examination, that rupture of hymen could also be possible by some external cause but in view of the evidence available on record and presence of semen and sperm on her vaginal swab, possibility of external cause for the injuries is ruled out.
25. Another circumstance which connects the accused persons with the offence in question is the FSL report Ex.P27. During the investigation, the vaginal slide of the victim, her pubic hair, her underwear and semen slide of the accused persons Sanjay, Sugan Sai & Gocharan and their underwears were sent for FSL examination to the Regional FSL, Bilaspur and as per the report, except the pubic hair of the victim article C, semen and sperm were found on all other articles. When the victim alleged that on the date of Cra 1518 of 2022 and connected cases 20 incident, she suffered gang rape by the accused persons, injuries have been found on her private part, semen and sperm were present on her vaginal swab, she identified the accused persons and prompt named FIR lodged by her and she remain firm in alleging the accused persons for commission of gang rape, it can safely be said that prosecution is able to prove the allegation against the accused persons beyond reasonable doubt.
26. Though it is alleged that only three accused persons Sugan Sai, Gocharan and Sanjay committed rape upon her and two accused persons Nutan & Madhav were standing near the door guarding the situation and therefore, there is no allegation of rape against Nutan & Madhav and no offence has been made out against them.
27. Section 376D of the IPC defines that when a group of persons acting in furtherance of common intention, each of them shall deem to have committed the offence of rape.
28. Section 376D of the IPC is necessary to notice here, which reads as under:
376D. Gang rape-- Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person's natural life, and with fine:
Cra 1518 of 2022 and connected cases 21 Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this section shall be paid to the victim.
29. From the entire evidence produced by the prosecution, allegation against the accused persons is clearly established by the prosecution though there are some trivial discrepancies but that itself does not affect the prosecution case.
30. In case of Appabhai and another Vs State of Gujrat, 1988 Supplementary SCC 241 Hon'ble Supreme Court has held in para-13 of its judgment that:
"13....................The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so Cra 1518 of 2022 and connected cases 22 as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. Jagamohan Reddy, J., speaking for this Court in Sohrab and Anr. v. the State of Madhya Pradesh 1972 Crl. L.J. 1302 at 1396 observed :
This Court has held that falsus in no falsus in omnibus is not a found rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered."
31. In case of Prahlad and another Vs State of Haryana, (2015) 8 SCC 688, Hon'ble Supreme Court has held in para-17 of its judgment as under:
"17. It has to be borne in mind that an offence of rape is basically an assault on the human rights of a victim. It is an attack on her individuality. It creates an incurable dent in her right and free will Cra 1518 of 2022 and connected cases 23 and personal sovereignty over the physical frame. Everyone in any civilised society has to show respect for the other individual and no individual has any right to invade on physical frame of another in any manner. It is not only an offence but such an act creates a scar in the marrows of the mind of the victim. Anyone who indulges in a crime of such nature not only does he violate the penal provision of the IPC but also right of equality, right of individual identity and in the ultimate eventuality an important aspect of rule of law which is a constitutional commitment.The Constitution of India, an organic document, confers rights. It does not condescend or confer any allowance or grant. It recognises rights and the rights are strongly entrenched in the constitutional framework, its ethos and philosophy, subject to certain limitation. Dignity of every citizen flows from the fundamental precepts of the equality clause engrafted under Article 14 and right to life under Article 21 of the Constitution, for they are the "fons juris" of our Constitution. The said rights are constitutionally secured."
32. For the foregoing consideration, we are of the considered opinion that the prosecution is able to prove its case beyond any reasonable doubt that all the accused persons committed gang rape upon the victim on the alleged date of incident and they have been rightly convicted and sentenced by the learned trial court after adverting the entire evidence available on record and we do not find any perversity or illegality in the consideration of the learned trial court convicting the accused persons for the alleged offence.
Cra 1518 of 2022 and connected cases 24
33. Accordingly, all the appeals filed by the appellants are hereby dismissed.
34. The appellants are reported to be in jail. They shall serve the entire sentence as awarded by the learned trial court.
35. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellants are undergoing their jail sentence to serve the same on the appellants informing them that they are at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon'ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court legal Service Committee.
36. The trial court records along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
padma