Rajeev Kumar Dubey, J. - (1.)This criminal appeal has been filed under Sec. 374(2) of the Cr.P.C. against the judgment dtd. 09/01/2013 passed by Sessions Judge, Raisen, in S.T.No.129/2012, whereby learned Sessions Judge found appellant guilty for the offence punishable under Sec. 376(2)(g) of the IPC and sentenced him to undergo 10 years R.I. with fine of Rs.2,000.00 in default of payment of fine amount further one-year R.I.
(2.)As per the prosecution case, on 27/03/2012 prosecutrix (PW-4) (name and identity of the prosecutrix imposed by law contained in sec. 228A of IPC is not disclosed) along with her, father (PW/8) came to Police Station Kotwali, District Raisen and lodged a report (Ex.P/6) averring that her in- laws' house is situated at village Baheriya. She had come to her father's house at village Naand for the festival of Holi, 2 days before. On 26/03/2012, in the night, Balwan Singh called her and planned to visit Khandera Devi Temple for Devi Darshan and they would return soon after having darshan. On this, she agreed to go with Balwan Singh without informing her parents. Balwan Singh took her on his motorcycle to Khandera temple. After darshan, while returning to village Naand, the motorcycle got punctured when they were near village Sanchet. Balwan Singh told her to stay there till he returned after getting the bike repaired and left with the motorcycle. She stood there for long but when Balwan Singh did not return till 5:00 am, she started on foot from there. Meanwhile, Lakshmi Panthi (PW9) came from behind on a motorcycle. She stopped Lakshmi Panthi (PW9). He told him that he was the son of the watchman of village Sanchet. She asked Lakshmi Panthi to drop her till Khandera, then Lakshmi Panthi took her on his motorcycle to Khandera. In Khandera two persons (later their names were revealed as appellant Sultan Singh and co-accused Santosh) met coming on a motorcycle. Lakshmi Panthi asked them where they were going, they told him that they were going to village Naktara. Then Lakshmi Panthi told them to drop her at the Naktara police post. Thereafter she sat on the motorcycle with appellant Sultan and co-accused Santosh but instead of taking her to the Police Post Naktara, they took her 1 kilometre inside the forest. There appellant Sultan and co-accused Santosh raped her. After that, they took her from the forest, left her on the road and ran towards Naktara. They also threatened to kill her if she narrated the incident to anybody. From there, she started walking on foot towards Raisen. In Raisen she met her father (PW/8) and narrated the whole incident to him and thereafter came to the Police Station Kotwali, District Raisen. On the report, Surendra Tiwari (PW-12) Sub Inspector, Police Station Sanchi, District Raisen, registered Crime No.171/2012 for the offence punishable under Ss. 376(2)(g), 506B of the IPC against the appellant Sultan Lodhi and co-accused Santosh Lodhi and investigated the matter. During the investigation, he went to the spot and prepared a spot map (Ex.P/7). He also sent the prosecutrix to District Hospital, Raisen for medical examination along with the letter (Ex.P/1-A), where Dr Archana Pundor (PW/1) examined her and gave the report (Ex.P/1). She also prepared a slide of a vaginal swab of the prosecutrix, seized Salwar which was worn by her at the time of her examination and sealed it in a packet and handed it over to the constable, who produced that packet at P.S. Raisen. Head Constable Kamal Singh (PW/3) seized that packet from his possession and prepared a seizure memo (Ex.P/4). Surendra Tiwari (PW-12) also recorded the statement of the prosecutrix (Ex.D/1), her mother (PW/4), father Mahraj Singh (PW/8) and Lakshmi Panthi (PW/9). He also arrested co-accused Santosh and appellant Sultan and prepared arrest memos (Ex.P/9 and 10) respectively and sent them to District Hospital, Raisen for medical examination, where Dr A.S.Kushawah (PW/10) examined them and gave the reports (Ex.P/13 and 14) respectively. He also prepared slides of their semens, seized their briefs which were worn by them at the time of their examination and sealed it in a packet and handed it over to the constable, who produced that packet at P.S. Raisen. Head Constable Raja Singh (PW/7) seized that packet from his possession and prepared a seizure memo (Ex.P/11). On 10/04/2012 Prosecutrix informed Surendra Tiwari (PW-12) that on the date of the incident Balwan also committed rape with her. On that he recorded her supplementary case diary statement (Ex.D/2), arrested Balwan and prepared arrest memo (Ex.P/5), sent him for medical examination to District Hospital Raisen, where Dr P.S. Thakur examined him and gave the report (Ex.P/15) He also prepared a slide of his semens and sealed it in a packet and handed it over to the constable, who produced that packet at P.S. Raisen. Head Constable Kamal Singh (PW/3) seized that packet from his possession and prepared a seizure memo (Ex.P/5). Surendra Tiwari also sent all seized articles to FSL, Sagar for chemical examination from where the FSL report (Ex.P/17) was received. After investigation, police filed the charge sheet against the appellant and other co-accused Santosh and Balwan before Judicial Magistrate First Class, Raisen. On that charge sheet, R.T.No.469/2012 was registered. Learned JMFC, Raisen committed the case to the Court of Sessions, where S.T. No.129/2012 was registered.
(3.)Learned Sessions Judge, Raisen framed charges against appellant Sultan and co-accused Santosh and Balwan under Sec. 376(2)(g), 506-B of the IPC and tried the case. Though appellant and co-accused abjured their guilt and took the defence that they have falsely been implicated in the case, learned trial Court after trial acquitted co-accused Balwan Singh from all the charges and also acquitted the appellant Sultan Lodhi and co-accused Santosh Lodhi for the charge punishable under Sec. 506 B of IPC, but found appellant Sultan Lodhi and co-accused Santosh Lodhi guilty for the offence punishable under Sec. 376(2)(g) IPC and sentenced appellant and co- accused Santosh as mentioned above. Being aggrieved from that judgment appellant Sultan filed this appeal.