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2016 DIGILAW 131 (CHH)

Surendra alias Sadhu v. State of Chhattisgarh

2016-04-26

PRITINKER DIWAKER

body2016
JUDGMENT : Pritinker Diwaker, J. 1. This appeal arises out of the judgment of conviction and order of sentence dated 24-10-2002 passed by the Special Judge and Additional Sessions Judge, Durg in Special Case No. 43/2002, convicting the accused/appellant under Section 377 of IPC and sentencing to undergo RI for five years. 2. Allegation against the appellant is that while he was inside the jail, on 21-7-2001 at about 1 a.m., he committed anal sex with complainant (PW-4), who was also in inmate of the Central Jail, Durg. On the next day, the incident was disclosed by the complainant to the jail authorities and in turn, the Jail Superintendent made a written complaint (Ex. P/2), on which FIR (Ex. P/7) was registered against the appellant and one Suman Dubey under Sections 377/34 of IPC. The victim was medically examined vide Ex. P/10 by PW-6 Dr. S.R. Banjare who noticed multiple abrasion over and around the anal orifice and opined that the victim was subjected to unnatural intercourse. After investigation charge-sheet was filed against the appellant and co-accused-Suman Dubey under Sections 377/34 of IPC and Section 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. However, while framing charge, the trial Court framed charges under Section 377 of IPC and Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act against them. 3. So as to hold the accused persons guilty, the prosecution examined as many as 9 witnesses. Statements of the accused were also recorded under Section 313 of Cr. P.C. in which they denied the circumstances appearing against them in the prosecution case, pleaded innocence and false implication. 4. The trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment while acquitting co-accused Suman Dubey of all the charges, convicted and sentenced the appellant as mentioned in para 1 of this judgment. 5. Learned counsel for the appellants submits that the appellant has been falsely implicated in this case, while deposing in the Court the complainant has exaggerated and has made even those allegations which are not there in his case diary statement. He further submits that the evidence of the complainant is not corroborated by any other independent witness and even medical evidence also does not fully support his version. 6. He further submits that the evidence of the complainant is not corroborated by any other independent witness and even medical evidence also does not fully support his version. 6. On the other hand, supporting the impugned judgment it has been argued by the State counsel that conviction of the appellant is strictly in accordance with law and there is no illegality or infirmity in it warranting interference by this Court. 7. Heard counsel for the respective parties and perused the material on record. 8. PW-4 Rakesh Roshan, complainant, has stated that he was confined in jail since July, 2001 and the accused persons were also in the same barrack where he was confined. He has stated that in the night at about 12.30-1 a.m. while he was sleeping, both the accused persons forcibly caught hold of him, gagged his mouth by inserting bed sheet, removed his undergarments and then first the appellant committed anal sex with him and thereafter, co-accused-Suman did the same with him, as a result he fell unconscious. Next morning he informed about the incident to his co-inmate Girdharilal and thereafter, to the jail authorities. He has stated that his medical examination was done. In his cross-examination, he has reiterated as to the manner in which he was subjected to anal sex by the appellant and the defence has not been able to elicit anything from him which could make his evidence in respect of act of the appellant doubtful or untrustworthy. 9. PW-9 Girdhari, who was first informed about the incident by PW-4 Rakesh, has stated that in the morning PW-4 informed him that the accused persons committed unnatural intercourse with him last night. PW-6 Dr. S.R. Banjare who medically examined the victim PW-4 vide Ex. P/10, noticed multiple abrasion over and around the anal orifice and opined that the victim was subjected to unnatural intercourse. In his deposition, he has categorically stated that the injuries found on the private part of the victim could be caused only on account of anal sex. In cross-examination, he has also denied the possibility of injury on the anal for any reason other than unnatural sex. 10. PW-2 Akhilesh Tomar, Jail Superintendent, has stated that he had made a complaint to Police Station, Durg regarding unnatural act committed by the accused persons with PW-4 Rakesh, PW-3 Sitaram Dhruv is a witness to spot map Ex. In cross-examination, he has also denied the possibility of injury on the anal for any reason other than unnatural sex. 10. PW-2 Akhilesh Tomar, Jail Superintendent, has stated that he had made a complaint to Police Station, Durg regarding unnatural act committed by the accused persons with PW-4 Rakesh, PW-3 Sitaram Dhruv is a witness to spot map Ex. P/3 and seizure of underwear of the victim Ex. P/4. PW-5 R.S. Rai, A.S.I., has proved the FIR (Ex. P/7). PW-7 S.S. Mourya, Sub-Inspector, Investigating Officer, has duly supported the prosecution case. 11. Close scrutiny of the evidence makes it clear that on 21-7-2001 the appellant had anal sex with PW-4 in the night. Next morning PW-4 informed about the incident to other inmate PW-9 Girdhari, who is his brother in relation, and PW-2 Akhilesh Tomar, Jail Superintendent, who in turn made a complaint to this effect to PW-5 R.S. Rai, A.S.I. All these witnesses have duly supported the version of PW-4. This apart, statement of PW-4 further finds due corroboration from his medical report Ex. P/10 wherein PW-6 Dr. S.R. Banjare has mentioned multiple abrasion over and around the anal orifice of the victim and opined that the victim was subjected to unnatural intercourse. The doctor has categorically stated that the injuries found on the private part of the victim could be caused only on account of anal sex. The evidence of PW-4 appears to be trustworthy, reliable and inspires confidence and as such, there is no reason to doubt its veracity. 12. On the basis of aforesaid discussion, this Court is of the considered opinion that the trial Court was fully justified in holding the appellant guilty under Section 377 of IPC based on the evidence adduced by the prosecution. 13. In the result, the appeal being without any substance is liable to be dismissed and is, accordingly, dismissed. The appellant appears to be on bail, therefore, his bail bonds stand cancelled and he be taken into custody forthwith to serve out the remaining part of his sentence. Appeal dismissed.