- (1.)These appeals are directed against the judgment dated 31st March, 2008, passed in Sessions Trial No.3/2007 by the 2nd Additional Sessions Judge, Baloda Bazar, District Raipur. By the impugned judgment, the appellants have been convicted under Section 376 (2) (g) IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.50,000 with default sentence of R.I. for 5 years.
(2.)The facts, briefly stated, are as under:
Prosecutrix (PW1) was aged about 19 years.On 3.2.2007, at about 4.30 p.m, the prosecutrix and her friend Chaiti Bai (PW9) had gone to visit a Mela. In Mela, they met 2 boys of their village namely Rajju (PW10) and Vimal (PW3). The case of the prosecution is that about 8.00 p.m, when they were returning from the Mela, 5 accused persons namely Tulsidas (Al), Jairam Sahu (A2), Dhaneshwar Sahu (A3), Rewaram Sahu (A4) and Prakash Sharma (A5) met them on the way near Pump House. Tulsidas (Al) caught the hand of prosecutrix (PW1) and forcibly dragged her to a nearby field. At that time, Jairam Sahu (A2), Dhaneshwar Sahu (A3), Rewaram Sahu (A4) and Prakash Sharma (A5) had restrained Rajju (PW10), Vimal (PW3) and Chaiti Bai (PW9). Tulsidas (Al) committed forcible sexual intercourse against the prosecutrix by throwing her in a field. Thereafter, Jairam Sahu (A2) and Dhaneshwar Sahu (A3) also came there, threw the prosecutrix in the field and they also committed sexual intercourse against her. By that time, Rajju (PW10) and Vimal (PW3) went to a nearby Dhaba and Munna Yadav (PW4), Ashish and Kripashankar (PW7) came there. The accused persons, seeing them, ran away from the place of occurrence. Further case of the prosecution is that Rajju (PW10) and Munna Yadav (PW4) then went to the Mela place and they caught Prakash Sharma (A5) and thereafter, other accused persons were also caught. Prosecutrix (PW1) lodged First Information Report (FIR) (Ex.P1) in concerned Police Station at about 2.00 a.m. 4.2.2007. Though the accused were unknown to the prosecutrix, the FIR contains their names. On 5.2.2007 Test Identification Parades (TIPs) vide Exs. P18, P19, P20 and P21 , were conducted by the Executive Magistrate A.S. Paikara (PW11). In the TIPs, prosecutrix (P W1), Chaiti Bai (PW9), Rajju (PW10) and Vimal (PW3) identified all the accused persons. Prosecutrix (PW1) was sent for medical examination and was examined by a lady Doctor of District Hospital, Raipur, who noticed 2 scratch marks, one on left forearm and another on right ankle joint. No injury was seen over external genital and thigh. Hymen was found old ruptured and healed. 2 slides from the vaginal swab were prepared and handed over to the concerned Constable. The lady Doctor mentioned in the report that no definite opinion could be given about rape and no positive finding of recent sexual intercourse could be given. The clothes of the prosecutrix were also seized and pubic hairs of Tulsidas (Al), Jairam Sahu (A2) and Dhaneshwar Sahu (A3) were also collected. The seized articles were sent for chemical examination to Forensic Science Laboratory (FSL), Raipur, from where, a report was received. According to the FSL report, human spermatozoa were found over the articles and slides of the prosecutrix, but no human, spermatozoa were found over the pubic hairs of the above accused persons. Further examination like DNA test etc. was not performed.

The case of the prosecution was mainly based on the evidence of prosecutrix (PW1), Rajju (PW10), Vimal (PW3) and Chaiti Bai (PW9), who identified the accused in Test Identification Parades (TIPs). Out of the above witnesses, Rajju (PW10) and Vimal (PW3) turned hostile. The learned Sessions Judge relied on the testimonies of prosecutrix (PW1) and Chaiti Bai (PW9) and held that it was proved beyond all reasonable doubts that the above 3 accused persons Tulsidas (A1), Jairam Sahu (A2) and Dhaneshwar Sahu (A3), committed forcible sexual intercourse against prosecutrix (PW1) and other 2 accused persons facilitated them to commit the sexual intercourse, therefore, all the accused persons were liable for punishment under Section 376 (2) (g) IPC. The accused persons, thus, were convicted and sentenced as above.

(3.)Learned counsel for the appellants have argued that the accused persons were falsely implicated in this case; none of them had participated in the crime; the prosecutrix, in fact, could not identify the assailants; the version of the prosecutrix was not reliable; the accused persons were shown to the prosecutrix and other witnesses, therefore, the Test Identification Parades (TIPs) vitiate; the Investigating Officer was not examined; the lady Doctor was also not examined; therefore, the conviction cannot be sustained.