JUDGMENT This appeal is directed against judgment dated 30.8.2006 passed by Additional Sessions Judge Bastar in Sessions Trial No. 354/2004 convicting the appellant No.1 for the offences punishable under Sections 376(2) (g), 341, 323 and 506-B IPC of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for ten years with fine of Rs. 2000 u/s 376(2)(g), rigorous imprisonment for three months with fine of Rs. 500 u/s 323, simple imprisonment for one month with fine of Rs. 100 u/s 341 and rigorous imprisonment for one year with fine of Rs. 500 u/s 506-B IPC plus default stipulations, and convicting the appellant No.2 under section 376(2)(g) and sentencing him to undergo rigorous imprisonment for ten years and pay fine of Rs. 2000 plus default stipulations. 2. Facts of the case in brief are that on 4.10.2004 FIR (Ex. P-4) was lodged by the prosecutrix (PW-5) aged about 22 years alleging that on 3.10.2004 at about 8.30 p.m. when she was returning home on bicycle from her workplace, on the way she was stopped by appellant Suresh Mandal, taken to nearby plot where he showed his desire to have sex with her. It is further alleged that when the prosecutrix refused to succumb to his demand, she was beaten by him. It is alleged that some how she managed to flee away from the clutches of appellant Suresh Mandal and then report was lodged by her. On the basis of the report lodged by the prosecutrix offences under sections 354, 342, 34, 323 and 506 IPC were registered against the accused persons. Thereafter, she was sent for medical examination to Maharani Hospital, Jagdalpur where Dr. (Smt.) S. Thakur (PW-3) examined her and found some injuries on her private part. According to this witness, on internal examination of the prosecutrix she found that on touching her private part the prosecutrix was complaining pain, there was erosion in the periphery of her private part and the prosecutrix was opined to have been subjected to rape. After medical examination of the prosecutrix, her statement was recorded under Section 161 of the Code of Criminal Procedure in which she has stated that she was subjected to rape by appellant No.1 and when the intercourse was being committed, appellant Rajkumar was put on guard to watch the situation. 3. So as to hold the accused/appellants guilty, prosecution has examined as many as 10 witnesses. 3. So as to hold the accused/appellants guilty, prosecution has examined as many as 10 witnesses. Statements of the accused/appellants were also recorded under section 313 of the Code of Criminal Procedure in which they have denied the charges levelled against them and pleaded their innocence and false implication in the case. 4. After hearing the parties the trial Court has convicted and sentenced the accused/appellants for the offences mentioned above. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Shri Prafulla Bharat counsel for the appellant No.1 submits that initially there was no allegation of rape against appellant - Suresh Mandal but subsequently the prosecutrix has improved her version falsely implicating him. He submits that fact of improvement has been admitted in paragraph 10 of the cross examination of the prosecutrix where she has categorically stated that initially she had lodged the report under Section 354 IPC but subsequently in her statement recorded under Section 161 of the Code of Criminal Procedure, she made an allegation of rape also. He submits that in the Court statement the prosecutrix has stated that after reaching her house she narrated the entire incident to her aunt Kamla Panigrahi, Shyambai, Rita, Narendra and Rakesh whereas Kamla Panigrahi (PW-8) has stated in her statement that on the date of incident the prosecutrix had not disclosed anything to her. Similar is the statement of Laxmi Panigrahi (PW-10) who has stated in her statement that the incident of rape was not disclosed to her on the date of incident. 7. Shri D.R. Sharma learned Sr. counsel appearing for the appellant Rajkumar submits that so far as this accused is concerned, there is no specific allegation against him regarding rape. According to him, the only allegation against this appellant is that he was guarding the situation when the appellant Suresh Mandal was committing the offence. He submits that he would adopt rest of the arguments advanced by Shri Prafulla Bharat counsel for appellant Suresh Mandal. 8. According to him, the only allegation against this appellant is that he was guarding the situation when the appellant Suresh Mandal was committing the offence. He submits that he would adopt rest of the arguments advanced by Shri Prafulla Bharat counsel for appellant Suresh Mandal. 8. On the other hand counsel for the respondent/State supports the impugned judgment and points out that even if in the FIR the prosecutrix has not made any allegation in respect of commission of rape but in her statement recorded under Section 161 of the Code of Criminal Procedure, she has categorically stated as to in what manner she was ravished by appellant No.1 Suresh Mandal, as well as the act of appellant No.2 Rajkumar. He submits that the statement recorded under Section 161 of the Code of Criminal Procedure and the Court statement of the prosecutrix are duly corroborated by each other. He submits that Dr. (Smt.) S. Thakur (PW-3) has stated in paragraph No.1 of her statement about two external injuries, one scratch in the middle of the breast and on left side of her neck. Hymen of the prosecutrix was opined to be ruptured, there was swelling and erosion in the private part and on touching it she was complaining pain. He submits that immediately after the incident, prosecutrix had informed Laxmi Panigrahi (PW-10) that she was subjected to rape by appellant Suresh Mandal and that the appellant Rajkumar was on guard for watching the situation. He submits that Shailendra Kumar Panigrahi (PW-6), cousin of the prosecutrix has also stated that immediately after the incident, the prosecutrix had narrated the entire incident to him of commission of rape by appellant No.1. He submits that vaginal slides were sent for chemical examination under Ex. P-14 and the report thereof is Ex. P-15 which confirms the presence of spermatozoa over the same. 9. Minute scrutiny of the material available on record clearly reveals that the prosecutrix has categorically stated in her court statement that when she was returning home on her bicycle, both the accused persons met her on the way, accused/appellant Suresh Mandal stopped her, took her to the nearby plot by dragging, asked her to permit him to have sex and when she refused to do so, he threatened her of life. When this witness tried to escape from their clutches, appellant Suresh Mandal again caught hold of her hair, made her fall on the ground, tied her limbs with her scarf and committed forcible sexual intercourse with her. According to her, when appellant Suresh Mandal was indulging in sex, other accused namely Rajkumar was guarding the situation. The prosecutrix has categorically stated in paragraph 19 of her court statement that as accused Suresh Mandal had threatened her of life, she had not disclosed the incident of rape in the first instance. Thus the contention of the counsel for the appellant that in the FIR the prosecutrix has not stated the incident of rape and therefore the conviction of appellant Suresh Mandal under section 376 IPC is not sustainable in the eye of law, has no force. Moreover, Dr. (Smt.) S. Thakur (PW-3) has categorically stated that on touching the private part of the prosecutrix, she was complaining pain and there was erosion and swelling in the periphery of her private part. This witness has also opined that the prosecutrix was subjected to sexual intercourse. Thus the statement of the prosecutrix is duly corroborated by the medical evidence also. Though in the FIR the prosecutrix has not mentioned the incident of rape for the obvious reason that she was threatened by accused Suresh Mandal of her life, she has categorically stated the same in her statement recorded under Section 161 of the Code of Criminal Procedure and also in the statement recorded in the Court. As regards appellant No.2 Rajkumar, the prosecutrix has categorically stated that when accused Suresh Mandal was committing the offence, he was guarding the situation. Had accused Rajkumar been fair on his part, it was his first duty to inform the police about the incident but as he did not do that, his act becomes punitive in law. 10. Having given a thorough and thoughtful consideration to the evidence led by the parties, this Court is of the opinion that the judgment impugned passed by the trial Court convicting and sentencing the accused/appellants as mentioned above, is well founded and need not be dislodged. 11. Consequently, there is no force in the appeal and it is dismissed accordingly.