Full Judgment
S.P. Khare, J.
1. Appellants Aghnu and Chaitu have been convicted under Section 376(2)(g), IPC and sentenced to rigorous imprisonment for ten years and to a fine of Rs. 1000/- each.
2. The prosecution case is that on 26-5-1998 at 10 A.M. Reotibai (P.W. 1) aged about 17 years was returning from Village Naijhar and when she reached Chimkatola she was caught hold of by accused Aghnu and Chaitu and they took her inside the forest and committed rape on her one by one. They threatened her with dire consequences, if she disclosed this incident to anyone. On her cries Vinod (P.W. 3) came there and scolded the accused persons and then they ran away. She came to her house and narrated the incident to her grand-mother aged about 90 years and Dholidas (P.W. 2) who is Kotwar of the village. She was suffering from epilepsy and on account of the threats given by the accused she could not go to the police station earlier. She went to the police station 8-6-1998 and lodged the FIR (Ex. P-1). After investigation the charge-sheet was filed.
3. The accused persons pleaded not guilty. Their defence is that they have been falsely implicated.
4. The Trial Court after appreciation of the evidence on record held that the accused persons have committed gang rape on the prosecutrix and sentenced them as stated above.
5. In this appeal it is argued that the FIR has been lodged after 14 days of the incident; there is no corroboration from the medical evidence; the prosecution witnesses have turned hostile; the prosecutrix is suffering from epilepsy and therefore, it is likely that the story narrated by her is imaginary.
6. The evidence on record has been scanned by this Court. Reotibai (P.W. 1) has deposed that she is an orphan girl as her parents had died during her childhood; she lives with her grand-mother aged about 90 years in Village Odhari; she had gone to Village Naijhar alone for treatment of epilepsy with which she was suffering; she was returning to her village on the date of incident; on her way she was caught hold of by accused Aghnu and Chaitu and they took her inside the forest; the accused persons were just like her brothers and still they did not spare her; accused Aghnu was first to have forcible sexual intercourse with her and at that time accused Chaitu had closed her mouth; then accused Chaitu did the same act with her and at that time Aghnu was holding her. She was not able to breathe and her dhoti had been taken out by them. She had narrated the incident to Vinod (P.W. 3) whom she has described as Munshi. She has specifically said that there was no consent on her part. She could not go to the police station earlier because her grand-mother was not well and she was apprehending danger from the accused who had threatened her at the time of incident. In cross-examination she has stated that she was alone while returning from Village Naijhar. She has further stated that Vinod (P.W. 3) had come there on hearing her cries and he had rebuked the accused persons for their wrongful act. She narrated the incident to Dholidas Kotwar (P.W. 2) and Kashiram (P.W. 10). There was a panchayat in the village in which some money was given by the accused persons to the Kotwar and Ghasiram.
7. Dholidas (P.W. 2) has deposed that the prosecutrix had complained to him that she was caught by accused Aghnu and Chaitu. He was declared hostile and cross-examined and then he came out with full narration. He has stated that the prosecutrix told him that accused Aghnu and Chaitu had committed rape on her. He accompanied the prosecutrix to the police station as she was afraid of the accused persons. Vinod (P.W. 3) has also partially supported the version of the prosecutrix. According to him he heard the cries of a girl and then he saw the prosecutrix and accused Aghnu in the forest. Aghnu ran away and then she came to her weeping and told him that Aghnu had caught hold of her. In cross-examination he stated that the accused persons had given an amount of Rs. 2500/- to the Kotwar in the Panchayat and Ghasiram had taken the money from him.
8. Ghasiram (P.W. 8) has deposed that the prosecutrix is his niece. He came to know in the Panchayat that accused Aghnu and Chaitu had ravished the prosecutrix but she did not tell him anything. This witness has also been declared hostile. Kashiram (P.W. 10) has deposed that prosecutrix had told him that she was ravished by accused Aghnu and Chaitu after four days of the incident. Dr. Rita Srivastava (P.W. 9) has deposed that she had examined the prosecutrix on 8-6-1998 but she did not find any injury on her body. She could not give any definite opinion about rape because of the lapse of time. Her report is Ex. P-15.
9. It is true that there was delay in reporting the matter to the police and for that reason there is no corroboration from the medical evidence but the testimony of the prosecutrix is true. Her version appears to be natural. There is not reason for her to make false allegation against the accused persons. As stated above there is some corroboration from the external sources also. Dholidas Kotwar (P.W. 2), Vinod (P.W. 3) and Kashiram (P.W. 10) have supported the version of the prosecutrix to this extent that she narrated the incident to them and Vinod (P.W. 3) had seen Aghnu with this girl in the forest. There is no plea of consent nor it is made out from the material on record.
10. There was no need of declaring the prosecutrix as a hostile witness. In examination-in-chief she has deposed against the accused persons and when she said that she was not examined by the lady doctor then she was declared hostile and cross-examined. But before she was declared hostile she spoke against the accused persons that they had committed rape on her one by one. Therefore, her evidence can be relied upon for conviction of the accused persons. Her evidence is not washed away simply because at a later stage she has been declared hostile. The Supreme Court has held recently in Gura Singh v. State of Rajasthan, AIR 2001 SC 330, that it is a misconceived notion that merely because a witness is declared hostile his entire version should be excluded or rendered unworthy of consideration. The evidence remains admissible in the trial and there is no legal bar to base the conviction upon the testimony of such witness. The evidence of such a witness cannot be treated 'as washed off the record altogether'. In the present case the testimony of the prosecutrix is fully reliable and finds corroboration from other witnesses. The delay in the report is on account of the intimidation by the accused persons; the prosecutrix has no parents; her grand-mother is too old and the villagers were busy in some kind of money transaction to hush up the case. At the trial stage also the witnesses have made an attempt to get the accused persons exonerated but the truth could not be suppressed and the Court has rightly convicted the accused persons of the charge under Section 376(2)(g), IPC.
11. So far as the sentence is concerned, this is the minimum prescribed by law. The accused persons committed gang rape on an orphan girl suffering from epilepsy and then tried to settle the matter in the panchayat by paying some money. The sentence is also appropriate on the facts of the case.