Shri Arjun v. Bobde a

8 cr-appeal-336-16+4.odtrescuing himself had reached the Police Station in an injured conditionand he was sent to the hospital for treatment. On complaint of theprosecutrix, law was set into motion and the offences under Sections450, 506-II, 326, 452, 366, 354-A, 354-B, 354-C, 376-B, 426, 307, 394,201 and 212 r/w. Section 34 and 149 of the IPC and Sections 67 and67-A of the Information Technology Act, 2000 r/w. Sections 109 and114 of the IPC came to be registered against the appellants and thejuvenile in conflict with law. Maksud, Wasim, Kadir, Siraj, Salim andJobi were arrested and after completion of the investigation, charge-sheet came to be filed.iv)The appellants were charged for commission of the abovereferred offences. They abjured the charge and claimed to be tried. Theprosecution in all examined 24 witnesses. Whereas, Maksud examinedlandlord- Shabbir Gaffur Sheikh (DW-1) in his defence. The Trial Courton conclusion of the trial found the appellants guilty under differentoffences and sentenced them for the same as referred above in parano. 2. Feeling aggrieved with the judgment of conviction, theseappeals came to be filed.EVIDENCE3.Before appreciating the arguments advanced by thelearned counsel appearing on behalf of the respective appellants and 9 cr-appeal-336-16+4.odtthe learned APP appearing on behalf of the State in different appeals,we intend to see what has been brought on record by the prosecutionto prove the charges against the appellants. We propose to categorizethe witnesses examined by the prosecution and the evidence adducedin the following four categories:-i)Eye-witnesses/victims;ii)Medical Evidence;iii)Recovery witnesses;iv)Other witnesses;v)Forensic Evidence;vi)Identification of the accused persons andvii)Electronic evidenceEYE-WITNESSES/VICTIMS4.The prosecutrix, a star witness of the prosecution hasdeposed that in the month of October-2014, Wasim alongwith Kadirhad been to the house of the prosecutrix. They tied her hands andWasim reiterated his request to leave Dinesh and maintain physicalrelations with him instead. However, due to the arrival of Dinesh, theyleft after threatening both of them. With regard to the incident dated05.11.2014, she deposed that when she was washing the vehicle withthe help of Dinesh, Maksud switched the water pump off and as aresult of that, an altercation took place between them. Maksud abused 10 cr-appeal-336-16+4.odther saying “Tu Bhadkhao Hai, To Bin Shadi Kiye Rahti hai”. Therefore,she slapped him. Thereafter, Maksud brought an Axe and tried to hitDinesh but Dinesh pushed him and Maksud fell down. Maksud thenmade a call to Wasim from his mobile phone and asked him to come.Wasim and Kadir alongwith the other accused persons came there andbarged into the house of the prosecutrix. Kadir unleashed a blow ofBamboo stick on the head of Dinesh. The prosecutrix made a call toRakesh who then reached there. They beat Dinesh and Rakeshmercilessly, whereas Wasim slapped the prosecutrix. Wasim asked theprosecutrix to have physical relations with Rakesh. Liquor was broughtthere. They removed the clothes of the prosecutrix and Rakesh.Rakesh told that he considers the prosecutrix as his sister. They madeDinesh, Rakesh and the prosecutrix drink liquor and also beat Rakesh.Wasim was recording videos of the prosecutrix and Rakesh while theywere asked to make different poses in compromising positions. WhenRakesh refused to remove his clothes, Wasim beat him by means of astick. Eventually, they allowed Rakesh to go home. They brought theprosecutrix and Dinesh out of the house, lifted injured Dinesh and puthim in the Indica car. Wasim, Kadir and the juvenile in conflict withlaw took Dinesh and the prosecutrix towards Nandori Bifurcation.They put Dinesh on the Railway track and the prosecutrix was taken toNagpur Road near a Dhaba. When Wasim and Kadir alighted from the 11 cr-appeal-336-16+4.odtvehicle, the juvenile in conflict with law made physical relations withthe prosecutrix. Thereafter, they took her into a jungle. At about 4:30am, they made her descend from the vehicle and Wasim committedsexual intercourse with her. Thereafter, Kadir repeated the same act.They took the prosecutrix to a village called small Shegaon andthereafter, towards Tadoba Road. At about 9:00 to 9:30 am, she wasmade to get down from the vehicle and Wasim and Kadir committedsexual intercourse with her. Wasim and Kadir had a long knife and arod and they were discussing whether to kill the prosecutrix or let hergo. When they got to know that the Police had found Dinesh, Wasimand Kadir alighted from the vehicle. They took the knife and left therod in the vehicle. Kadir left the prosecutrix near Vidya Vihar Convent.5.This witness on 17.11.2014 identified the juvenile inconflict with law and on 25.11.2014 she identified accused- Kadir andSiraj respectively. She further deposed that she sustained injuriesbelow her right eye and right elbow, whereas Dinesh sustained injurieson his head and legs and Rakesh suffered injuries on his legs andhands.6.Dinesh (PW2) is an injured and also an eye-witness. Thiswitness also deposed on the same lines except the incident of October-2014. His evidence regarding the incident with Maksud is on the same 12 cr-appeal-336-16+4.odtlines as that of the prosecutrix but in detail. According to him, therewas an altercation between the prosecutrix and accused Maksud onaccount of washing of the vehicle. Maksud was worried about theelectricity bill due to usage of the boring for extracting water from thebore. On this count, he started hurling abuses and even assaulted theprosecutrix. Shabbir tried to pacify Maksud but still, he abused theprosecutrix in filthy language and therefore, the prosecutrix slappedhim. He even deposed about Maksud bringing an Axe in order toassault him. About the main incident, he also deposed that accusedMaksud, Wasim and Kadir alongwith one more person entered into thehouse of the prosecutrix. Kadir banged the mobile phone of thiswitness on the floor to break it and removed its SIM to take it withhim. Kadir gave a blow of the Baton on his head and he sat on the Cot.Kadir continued to beat this witness with a Baton. At that time,Rakesh came there. He was made to sit between this witness and theprosecutrix. Wasim forcibly made them drink liquor. Wasim askedRakesh and the prosecutrix to remove their clothes. When Rakeshrefused, he was given a blow on his legs. Kadir also slapped him andthe prosecutrix. Wasim asked Maksud to go out. It appears from theversion of this witness that he was made to drink a full bottle of liquorand was feeling dizzy. Rakesh was also assaulted with a knife and wasmade to kiss the prosecutrix on the cheek and lips. Various types of 13 cr-appeal-336-16+4.odtposes of the two of them were snapped and recorded in the mobilephone. Wasim, Kadir and an 18 year old boy lifted him and theprosecutrix and put her in the vehicle on the middle seat whereas, thiswitness was put on the back seat. At the instance of Wasim and Kadir,the juvenile removed the wallet of this witness containing Rs.3,000/-and kept it with him. They took them to Chandrapur- Bhadrawati roadand after the toll plaza at Nandori, they alighted from the vehicle.They lifted this witness from the vehicle and made him lay on theRailway track and waited for the train for 15-20 minutes. When thiswitness tried to hide himself in the bushes, Kadir and the juvenilepulled him out of the bushes. The juvenile gave two blows of the ironpipe on the backside of his head and they again pulled him over theRailway track and made him lay there. They kept his neck on the trackand gave a blow of the pipe on his head. For the next 15 minutes, hewas laying there. A train came and he turned turtle. He then went tothe opposite side of the track, started walking through the hidden roadtowards a field and went to village Vislon. After borrowing a mobilephone from a Railway personnel, he called his brother-in-law whoreached there after 1½ to 2 hours and took him to Ramnagar PoliceStation, Chandrapur from where he was referred for medicalexamination to the Government Hospital. Thereafter, he was admitted 14 cr-appeal-336-16+4.odtto the ICU of a private hospital for two days. He also identified thejuvenile and two other accused persons.7.Rakesh Hiraman Bhovte (PW3), another injured has alsotestified that on a call made by the prosecutrix, he went to the house ofthe prosecutrix. A boy was standing outside her house. He wentinside the room. A man and a boy, whom he later identified as Kadirand Maksud were present there. Kadir unleashed a blow of the batonon his hand and Maksud pushed him. Kadir again gave a blow of theBaton on his leg and Wasim asked him to remove his clothes. When hedenied, Kadir gave a knife blow on his hand. Wasim made himremove his clothes and kiss the prosecutrix on her lips. Before that,Wasim had beaten the prosecutrix and made her drink liquor andremove her clothes. At the time when the kissing was taking place,Wasim took photos and videos on his mobile. Wasim asked thiswitness to have sexual intercourse with the prosecutrix. He deniedand then Wasim made the prosecutrix put her face on his private part.Dinesh was badly beaten up and was made to drink liquor forcibly.Thereafter, Kadir pushed him outside of the room and he was directedto go home. Before that, Kadir had removed the battery and the SIMfrom the mobile phone of this witness. On the next day, he stated theincident to Vijay Gurnule. 15 cr-appeal-336-16+4.odtMEDICAL EVIDENCE 8.Dr. Dipti Shrirame (PW10), who examined the prosecutrixhas deposed that she examined her and found that blood stains werepresent over the right and left sleeves of her shirt. She found thefollowing injuries over her person:-1)Abrasion over right elbow approximate 2 X 2 cm well defined,reddish brown in colour, swelling was present and non grievous.2)Contusion, below right eye, size approx. 3 X 2 cm, margin is welldefined, colour reddish brown swelling was present, non-grievous.3) She found the injuries over her person to be inflicted within 24hours and they were to heal within seven days.4)On genital examination she found that her hymen was torn.There was an old injury over her hymen. Two fingers were easilyinserted. Overall findings were that she was subjected to sexualintercourse.5)She obtained her sample of blood, vaginal swab, pubic hair forchemical analysis. She was asked some questions as per Exh.157. Onquestionnaires put to her, this witness could not say whether she wassubjected to gang rape. She did not find injuries over her privateparts. She did not find any evidence related to forcible sexualintercourse. 16 cr-appeal-336-16+4.odt9.Dr. Morarji Kusnake (PW-15) examined Rakesh (PW3) andaccused Wasim and Kadir. He found following injuries on the personof Rakesh (PW3) :-i)Abrasion over left leg down the knee admeasuring 5 cm X 4 cm.ii)Abrasion over left shoulder admeasuring 4 cm X 4 cm.iii)Abrasion over fingers of both palms admeasuring 1 cm X 1 cm.10.He opined that the said injuries might have been inflictedusing a hard and blunt object. No injury was found on the person ofKadir however, Wasim suffered an abrasion over his left scapulaadmeasuring 5 cm X 5 cm. He further deposed that accused Wasimand Kadir were capable of sexual intercourse.11.Dr. Digambar Rathod (PW20), a Medical Officer attachedto Civil Hospital, Chandrapur examined Dinesh (PW2) on 06.11.2014,found the following injuries on his person and issued medical report atExh.258.i)Abrasion of 2 X 0.5 cm on his forehead.ii)Abrasion of 0.5 X 0.5 cm on the back of the head.iii)Laceration of 2 X 1 cm on right wrist.iv)Laceration of 2 X 1 cm on left wrist.v)Laceration of 1 X 1 cm on right knee joint. 17 cr-appeal-336-16+4.odtThis witness also examined the Baton and the steel rodand opined that injury nos. i) and ii) may be caused due to theseweapons and death may also occur.12.Dr. Amal Potdar (PW14), the surgeon in whose hospitalDinesh (PW2) was admitted for two days has been examined by theprosecution. He also found the following injuries on the person ofDinesh (PW2):-i)Abrasion over right forehead, admeasuring 2 X ½ cmii)Abrasion over back side of head, admeasuring 1 X ½ cmiii)Laceration over right wrist, admeasuring 2 X 1 cmiv)Laceration over left wrist admeasuring 2 X 1 cm.v)Laceration over right knee.RECOVERY WITNESSES13.The prosecution examined Vaibhav Vasantrao Donadkar(PW11), a panch who had been to the spot of the incident i.e. thehouse of the prosecutrix, the Railway Track and the spot at Tadobaroad. This witness has deposed that on 06.11.2014, he had been tothe house of the prosecutrix from where bottles of liquor, pieces ofcigarette and water bottles were seized under seizure panchnama Exh.173 and Exh.174. The recovery of the seat cover from the vehicle inwhich the prosecutrix was taken away was done in the presence of the 18 cr-appeal-336-16+4.odtprosecutrix (Exh.175) after she identified the vehicle. It is further theversion of this witness that the clothes of Dinesh and Rakesh withmedical samples were seized in his presence under panchnana Exh.178 to 185 and this witness claimed to be present at the time ofpreparing the spot panchanama of the Railway Track and seizure of theshoe from a nearby place under panchnama Exh.186 and 187.Thereafter, this witness also went to the spot at Tadoba Jungle andpanchnama at Exh. 175 was prepared. Apart from this, this witnesshas also testified that the statement of appellant- Kadir was recorded atthe Police Station pursuant to which, a knife and a ‘Zara’ wererecovered at the instance of appellant- Kadir, under panchnamaExh.188 and 189. It appears from the tenor of cross-examination thatthis witness alongwith the Police went to the room of the prosecutrixand seized articles which were relevant to the investigation. Thiswitness identified those articles in the Court. So far as recovery of theshoe belonging to Dinesh near the Railway track is concerned, in thecross-examination this witness has identified the shoe and admittedrecovery of the shoe from the bushes near the Railway track. Though,this witness has shown acquaintance with Dinesh and Rakesh butconsidering the tenor of cross-examination and corroboration of hisversion with the version of Pralhad Rupgir Giri (PW23) coupled with 19 cr-appeal-336-16+4.odtproduction of the articles before the Court, the Trial Court rightly heldthat the recovery of articles deposed by this witness is proved.14.This takes us to the version of Vijay Jagdish Sharma(PW13), one of the panchas to the seizure of clothes of appellant –Wasim, seizure of two mobiles phones and one rod at the instance ofappellant- Wasim. He deposed that on 16.11.2014, appellant- Wasimadmitted in his presence that he will produce the weapon and theclothes. The said statement was recorded at Exh.199 and thereafter,he took them to his Garage and produced clothes, two mobile phonesand one rod which were seized under panchnama Exh.200. Accordingto this witness, on the next day, at the instance of appellant- Wasim, awheel spanner was seized under Exh.192. This witness identified allthese articles seized in his presence. The cross-examination does notsuggest that the mobile phone and iron rod were not seized from thehouse of Wasim, only the identity of the mobile phone is questioned inhis cross-examination. This evidence is corroborated by Pralhad Giri(PW-23), the investigating officer and production of the Nokia mobilephone (Article – 4) in the trial Court.15.The prosecution also came up with recovery of the Axe bywhich appellant- Maksud tried to assault Dinesh during the initialquarrel. For this purpose, the prosecution has relied upon the version 20 cr-appeal-336-16+4.odtFeroz Gafur Sheikh (PW24), a Panch Witness who has testified that on9.11.2014, appellant- Maksud disclosed that he has kept the Axe usedin the incident in his house which was recorded under Exh.267 andpursuant to which, he took this witness and other panchas includingthe photographer to his house and took out the Axe which was seizedunder panchnama Exh.268. Nothing elicited in the cross-examinationof this witness to disbelieve his version that the Axe was recoveredfrom the house of Maksud.OTHER WITNESSES16.We will now examine the versions of Gangadhar NagoraoBhoyar (PW-16), Ganesh Gajanan Dethe (PW-17) and Vivek Zade(PW21).17.The testimoy of Ganesh (PW-17) and Vivek (PW-21)reveals that they are employees of the Railways. On 05.11.2014, theywere on night paroling duty between location No. 837.0 to 839.0. Inthe morning, at about 5:00 to 5:30 am, they went to the boring-pumpto fetch water near Zilla Parisad School, Vilson. According to them,they saw a boy in an injured condition having injuries on his head andhis shirt was blood-stained. He asked them for water. On his request,Vivek (PW21) lent his mobile phone to the said boy. He talked to hisBhauji and told him that he was beaten up and also disclosed his 21 cr-appeal-336-16+4.odtlocation. This witness also talked to the said person on the mobilephone and requested him to pick up the injured.18.Gangadhar Bhoyar (PW16), the employer of Dinesh withwhom he was working, is the person to whom Dinesh (PW2) made acall from the mobile phone of Vivek (PW21) from village Vilson. Thiswitness testified that he talked to Dinesh (PW2) and the person towhom the mobile phone belongs. Vivek (PW21) told Gangadhar(PW16) that Dinesh is lying in an injured condition at village Vilsonand after asking for the exact location, Gangadhar (PW16) reachedvillage Vilson and found Dinesh lying there. Dinesh had injuries on hisback and head and his clothes were stained with blood. This witnessfurther testified that on the way to the hospital, Dinesh informed himabout the incident.19.We shall now discuss the evidence of other two witnesseswhich is relevant to decide these appeals. Rupesh Pande (PW19), theowner of the Tata Sumo vehicle and Kashinath Nigot (PW22), theowner of the Tata Indica vehicle wherein, the alleged incident tookplace.20.Rupesh Pande (PW19), the owner of the Tata Sumobearing registration No. MH34/M-9740 has testified that on 22 cr-appeal-336-16+4.odt06.11.2014, Goldi and Jobi came to his house at about 11:00 in thenight. They requested this witness to let them borrow his vehicle inorder to take Wasim’s mother to the hospital. Therefore, this witnessaccompanied them in the said Tata Sumo vehicle and he alsoconsumed liquor. Thereafter, Jobi started driving the vehicle.Appellant- Jobi took them to Sindewahi where appellants Wasim, Kadirand the juvenile in conflict with law arrived in a Maruti Car andboarded the Tata Sumo. They went towards Chandrapur where Jobyand Goldi got down from the vehicle and others proceeded towardsAdilabad. At Adilabad, Wasim and Kadir got down and this witnessand the juvenile in conflict with law proceeded back to Chandrapurwhen the Police vehicle started chasing them on the way. The juvenilein conflict with law fled and this witness was apprehended.21.Kashinath (PW22), is the owner of the Tata Indica vehiclebearing registration no. MH-01/Y-1943, who testified that on05.11.2014 at about 9:00 am in the morning he handed over the TataIndica Car to appellant- Wasim for repair work and Wasim assured thathe will deliver the vehicle in the afternoon. When in the afternoon, heenquired about the vehicle, Wasim said that the vehicle is yet to berepaired. In the evening when this witness made a phone call toWasim, he told that after the repair work is done, he will drop thevehicle to the house of this witness. Wasim did not return the vehicle 23 cr-appeal-336-16+4.odtto this witness as promised. On the next day i.e. on 06.11.2014, Wasiminformed this witness that there was a quarrel and thereafter, Wasimsent the vehicle to this witness through one Bhurya. Wasim, in hisstatement under Section 313 of the CrPC admitted that the vehicle waswith him on 05.11.2014 and 06.11.2014.FORENSIC EVIDENCE22.The DNA report, Exh.330 shows that the full shirt and thejeans pant seized from Dinesh (PW2), which he was wearing at thetime of the incident, were stained with blood as well as the seat coverand the shirt seized from the prosecutrix was also stained with theblood of Dinesh (PW2). That apart, the DNA report also depicts thatthe wall scrapping seized from the School at Vilson also contained theblood of Dinesh (PW2). No semen was detected either on the clothesof the prosecutrix or on the clothes of appellants- Wasim, Kadir and thejuvenile in conflict with law. Apart from that, burnt cigarette buttscontained the DNA profile of the prosecutrix.23.The prosecution has also relied on the reports of chemicalanalysis at Exh. 333. The CA report reveals the presence of blood onthe clothes of the prosecutrix; full shirt and jeans pant of Dinesh(PW2); full shirt of Wasim and scrapping of the wall as well as on the 24 cr-appeal-336-16+4.odtseat cover. The CA reports Exh. 275 and 276 depict the presence ofAlcohol in the blood of the prosecutrix and Dinesh (PW2).IDENTIFICATION OF THE ACCUSED PERSONS24.It is the case of the prosecution that the prosecutrix,Dinesh (PW2) and Rakesh (PW3) identified appellants- Kadir and Sirajin the test-identification parade conducted by Pramod Kulte (PW9),the then Naib Tahsildar. He has been examined at Exh.161. Hetestified about the requisition by the Police for conducting test-identification parade; and accordingly, he conducted the test-identification. This witness has testified that Rakesh (PW3) identifiedaccused- Shaikh Kadir and Siraj. Likwise, Dinesh (PW2) and theprosecutrix also identified appellant- Shaikh Kadir and Siraj in thepresence of panchas and therefore, memorandum panchnamas at Exh.164 and 165 were prepared. The version of Pramod Kulte (PW9),Circle Officer, who conducted the test identification and Rahul JagdishShende (PW12), witness to the test identification parade, reveals thatthe test identification was conducted wherein Kadir and Siraj wereidentified.ELECTRONIC EVIDENCE25.It is to be mentioned here that the Nokia mobile phoneseized at the instance of Wasim was sent for Cyber Forensic 25 cr-appeal-336-16+4.odtexamination and 69 images and 10 videos were retrieved. The said 69images and 10 videos were produced before the Court in the form of aCD containing the photos and videos of the prosecutrix and Rakesh incompromising positions, which is palpable from the panchnamaprepared at the time of running of the said CD before the Trial Court.26.No doubt, the mobile phone in which the alleged videoswere recorded and photos were snapped has been produced before theCourt but the CD which was run before the Court consists of the videosand the photos, poses a question whether in absence of the certificatemandated under Section 65B of the Evidence Act, the Court could haverelied on the contents of the CD that contained copies of the videosand the photos.27.Section 65B of the Indian Evidence Act provides foradmissibility of copy of electronic records on production of a certificatein compliance with the conditions mentioned in the Section. Section65B contemplates issuance of a certificate by the person having lawfulcontrol and use of the said electronic records mentioning that theconditions under Section 65B of the Indian Evidence Act have beencomplied with. Here accused- Wasim, the accused in the crime, wasthe person having lawful control and use of the Nokia mobile phone inwhich naked photos and videos of the prosecutrix and Rakesh in 26 cr-appeal-336-16+4.odtcompromising positions were recorded. The electronic record soughtto be proved is against Wasim, therefore, as contemplated underSection 65B of the Indian Evidence Act, a certificate issued by Wasimwould be required. Obviously, the electronic record which is sought tobe proved is against Wasim and therefore, the prosecution could notget the certificate under Section 65B of the Indian Evidence Act fortwo reasons: Firstly, Wasim will never agree to issue a certificate underSection 65B of the Indian Evidence Act and Secondly, an accused in acrime cannot be compelled to give incriminating evidence againsthimself.28.In the case of Arjun Panditrao Khotkar Vs. KailashKushanrao Gorantyal 1, the Supreme Court after discussing twomaxims: Firstly ex non cogit ad impossibilia i.e. the law does notdemand the impossible; Secondly impotentia excusat legem i.e. whenthere is a disability that makes it impossible to obey the law, thealleged disobedience of the law is excused, has held in para no. 51 ofthe judgment as under:-“51. On an application of the aforesaid maxims to the presentcase, it is clear that though Section 65-B(4) is mandatory, yet,on the facts of this case, the Respondents, having doneeverything possible to obtain the necessary certificate, whichwas to be given by a third-party over whom the Respondentshad no control, must be relieved of the mandatory obligationcontained in the said sub-section.”12020 (7) SCC 1 27 cr-appeal-336-16+4.odt29.In wake of the two reasons stated above, it was notpossible for the prosecution to obtain the certificate provided underSection 65B of the Indian Evidence Act from Wasim, who was havinglawful control over the electronic device i.e. the Nokia mobile phone.Therefore, non-production of the certificate under Section 65B of theIndian Evidence Act by the prosecution will not be fatal to the case,provided that the prosecution is able to prove the authenticity of theelectronic record which has been produced in the Court.30.This takes us to the report of the Cyber Forensic LabExh.328, which describes how the data was retrieved from the mobilephone having IMEI 1- 353637065232250 and IMEI 2-353637069731711. It was firstly copied on the hard disk andthereafter in the CD/DVD, which came to be produced in Court. Thatapart, the ‘Hash Value’ of the original as well as the copy of the saidelectronic record was verified and it matched as per the report. Hence,the ‘Hash Value’ of the copies produced in the Court matches with the‘Hash Value’ of the videos and the photos retrieved from the mobilephone of Wasim.31.The Supreme Court in the case of Zakia Ahsan Jafri Vs.State of Gujarat 2 has held in para no. 278 as under:-22023 (13) SCC 54 28 cr-appeal-336-16+4.odt“278. Insofar as the CD record submitted by Mr. RahulSharma, as aforesaid, he had failed to handover the caseproperty to the investigating officer (of Naroda Police Station),dealing with the case concerned nor got it entered in theregister of case property (Muddamal) or informed the Court ofjurisdiction about seizure of such case property. He had insteadproduced the CD on 31-5-2008, which came to be seized by theinvestigating officer and taken as evidence. These two CDs werecollected by the investigating officer from the records ofNanavati-Shah Commission of Enquiry. Mr. Rahul Sharma hadsubmitted the same before the Commission. Additionally, oneCD containing the same information was submitted by Mr.Amresh Bhai N. Patel, Jansangharsh Manch, which wasobtained by him from the Commission of Enquiry. That was alsoproduced before the investigating officer. In absence of theoriginal CDs which were never produced by Mr. Rahul Sharma,it was not possible for SIT to obtain the certificate ofauthenticity under Section 65-B of the Evidence Act, 1872 andat the same time, it had been noticed that the CDs were copiedby Mr. Rahul Sharma in his computer and format changed, bychanging it in zipped format. The SIT has analyzed all theseaspects and opined that MD5 Hash value of the files in all thethree CDs was found same. Further, the files containing calldetail records or fragments of the files could not be found onthe computer storage media. Moreover, due to lapse of time, nofruitful purpose would have been served in seizing the mobilephone of the user concerned after seven years to undertakeroving enquiry. All these aspects have been duly considered bySIT while dealing with Allegation No. (xxiii) as reproducedhitherto, in paragraph No. 60. The opinion so recorded by theSIT commended to the Magistrate, as well as, the High Court.We find no reason to deviate therefrom.”32.In light of the observations made above, the Trial Courtwas justified in relying on the electronic record without the certificatemandated under Section 65B of the Indian Evidence Act.APPRECIATION OF EVIDENCE33.Considering the number of accused and the number ofoffences alleged to have been committed by the appellants, we deem itfit to consider the evidence of prosecution’s witnesses in sequence and 29 cr-appeal-336-16+4.odttherefore, for the sake of convenience, we divide the case of theprosecution in three parts:-i)The incident near the room.ii)The incident inside of the room of the prosecutrix; andiii)The incident which occurred outside the room of the prosecutrix.INCIDENT NEAR THE ROOM OF THE PROSECUTRIX34.We now deal with the incident which occurred near theroom where the prosecutrix and Dinesh were residing. It has come inmany words in the evidence of the prosecution’s witnesses that theprosecutrix was residing with Dinesh in a rented room owned byShabbir, the brother of Maksud. Rather, this aspect has not beendisputed by the defence. For this purpose, the prosecution relied onthe version of the prosecutrix, Dinesh and Rakesh. 35.The quarrel between the prosecutrix and Dinesh on oneside and Maksud on the other is palpable from the evidence of theprosecutrix and Dinesh. The statement of Maksud recorded underSection 313 of the CrPC also reveals that a quarrel took place betweenhim and the prosecutrix. The prosecutrix and Dinesh have deposedabout the quarrel between them and Maksud on account of increase inthe electricity bill due to washing of her vehicle with the help of motor.In that quarrel, Maksud abused the prosecutrix by calling her 30 cr-appeal-336-16+4.odt“Bhadkhau”. The Trial Court relied on the version of these twowitnesses and held that Maksud has committed the offence of criminalintimidation with threat of causing grievous injury and convicted andsentenced him for seven years imprisonment.36.Criminal intimidation has been defined under Section 503of the IPC, which reads as under:-“503. Criminal Intimidation.- Whoever threatens another withany injury to his person, reputation or property, or to the personor reputation of any one in whom that person is interested, withintent to cause alarm to that person, or to cause that person todo any act which he is not legally bound to do, or to omit to doany act which that person is legally entitled to do, as the meansof avoiding the execution of such threat, commits criminalintimidation.Explanation.- A threat to injure the reputation of any deceasedperson in whom the person threatened is interested, is withinthis section.”37.Thus, to bring the accused within the ambit of criminalintimidation, the ingredients of Section 503 of the IPC will have to beconsidered. Section 503 of the IPC states that, a person must threatenanother with injury to his person or reputation or to the property withintent to cause alarm to that person or cause that person to do or toomit an act which he is not legally bound to do. There is nothing onrecord to show that Maksud threatened the prosecutrix and Dineshwith intent to cause alarm to the prosecutrix to do any act which theprosecutrix or Dinesh were not legally bound to do. Utterance of theword “Bhadkhau” by Maksud by no stretch of imagination is 31 cr-appeal-336-16+4.odtthreatening so as to bring him under the gamut of criminalintimidation, that too punishable under Part-II of Section 506 of theIPC. Therefore, the finding of the Trial Court holding Maksud guilty forthe offence punishable under part - II of Section 506 of the IPC iserroneous. We accordingly set it aside.INCIDENT INSIDE THE ROOM OF PROSECUTRIX 38.The deposition of the prosecutrix and Dinesh furtherdepicts that after the quarrel was pacified by Shabbir, Maksud went tohis house, brought an Axe, barged into the room of the prosecutrix andeven tried to assault Dinesh but he could not succeed due to the pushgiven by Dinesh. The version of Pralhad Rupgir Giri (PW-23) revealsthat at the instance of Maksud, an ‘Axe’ was recovered at Exh.268.39.It is further the version of the prosecutrix as well asDinesh that Wasim, along with Kadir and some unknown persons alsobarged into the room of the prosecutrix along with Maksud. Theprosecutrix and Dinesh in chorus have categorically deposed that themoment they opened the door after Wasim knocked, Kadir assaultedDinesh by means of a baton on his forehead and other parts of thebody. It is also the version of the prosecutrix, Dinesh and Rakesh thatRakesh was assaulted by Kadir and Wasim after he reached there.Moreover, Wasim made the prosecutrix and Dinesh drink liquor and he 32 cr-appeal-336-16+4.odtalso forced the prosecutrix to smoke cigarettes. Their version is alsocorroborated by the spot panchnama and seizure of cigarettes butts,empty liquor bottles, water bottles and seizure of baton from the spotof the incident. The DNA report Exh.330 also shows that cigarettesbutts carry the DNA of the prosecutrix. The CA report also reveals thatthe blood of the prosecutrix and Dinesh contains Alcohol. The injurycertificate Exh.213 and Exh. 258 issued by Dr. Amal Potdar (PW14)and Dr. Digambar Rathod (PW20), who examined Dinesh reveals thatDinesh had an injury on his forehead and other parts of the body. TheCA report and the DNA report reveal that the clothes seized from theperson of Dinesh had stains of blood which belongs to Dinesh. Injurycertificate (Exh-215) and evidence of Dr. Morarji Mohan Kusnake(PW-15) also corroborates with the version of the prosecutrix, Dineshand Rakesh that Kadir also assaulted Rakesh with a baton and a knifeand inflicted injuries on him. 40.It has been submitted by Mr. Tiwari, learned counsel forKadir that the parading procedure for conducting the TestIdentification (TI) Parade contemplated under the Criminal Manualhas not been followed and therefore, the TI Parade stands vitiated andcannot be relied upon. We are hastened to add that TI Parade assuresthat the investigation is in the right direction. It is a rule of prudence 33 cr-appeal-336-16+4.odtwhich is required to be followed where the accused is not known tothe victim.41.In the present case, the initial incident occurred inside theroom of the prosecutrix in close proximity with theeye-witnesses/victim. The prosecutrix, Dinesh and Rakesh had ampleopportunity to identify Kadir as he was with them inside the room formore than two hours. Rather, Rakesh was acquainted with the friendof Kadir. Thereafter, Kadir was with Dinesh till they reached theRailway track and with the prosecutrix for the whole night. Therefore,even if there are procedural lapses in conducting the TI Parade, theevidence of the prosecutrix, Dinesh and Rakesh cannot be doubted.These witnesses identified Kadir not only in the TI Parade but also inthe Court. Above all, the conviction of Kadir is not solely based on theTI parade but there is ample corroborative evidence in the form ofrecovery of weapon, travelling back to Chandrapur along with Wasimand the juvenile in conflict with law in the vehicle of Rupesh Pande(PW19).42.There is consistency in the version of the prosecutrix,Dinesh and Rakesh regarding the fact that accused Wasim made theprosecutrix and Rakesh strip themselves and get into compromisingpositions and for that purpose, Wasim and Kadir beat Rakesh whereas, 34 cr-appeal-336-16+4.odtWasim slapped the prosecutrix. Wasim videographed and snappedphotos of the prosecutrix and Rakesh in compromising positions. Theirversion is supported by electronic evidence i.e. the images and videosfound in the Nokia mobile phone belonging to Wasim wherein, theprosecutrix and Rakesh were seen in compromising positions. Thus,the versions of the prosecutrix, Rakesh and Dinesh corroborate witheach-other and is also corroborated by other evidence includingelectronic evidence as discussed above. The depositions of theprosecutrix, Dinesh and Rakesh inspire confidence of the Court and theTrial Court has rightly appreciated and relied on the versions of theprosecutrix, Rakesh and Dinesh.43.Needless to mention that, considering the role played byeach accused, i.e. Wasim calling Maksud and asking him to come to theroom of the prosecutrix; Wasim accompanying Kadir who brought thebaton with him; Maksud, Wasim and Kadir entering the room of theprosecutrix; Kadir assaulting Dinesh and Rakesh at the instance ofWasim and Maksud; and recording of pornography inside the roomindicates sharing of common intention amongst them.44.Thus, from the above material available on record, theTrial Court was completely justified in holding that accused Maksud,Wasim and Kadir committed criminal tress-pass in the room occupied 35 cr-appeal-336-16+4.odtby the prosecutrix with intent to commit offences punishable forimprisonment for life i.e. with preparation for hurt, assault or wrongfulrestrain and thereby committed the offences punishable under Sections450, 452, 354A, 354B, 354C of the IPC and Section 66E of the IT Act,2000.45.Sofar as Siraj is concerned, it has been claimed by theprosecution that Siraj also accompanied Wasim and Kadir whiletrespassing into the room of the prosecutrix and remained inside theroom and hence, he has common intention. It will be worthwhile tomention here that, though the prosecutrix has identified Siraj in thetest-identification parade conducted by Pramod Kulte (PW9) but thescrutiny of evidence of the prosecutrix, Dinesh and Rakesh goes toshow that none of these witnesses have deposed that Siraj also enteredthe room of the prosecutrix. Rather, their version goes to show thatonly three persons were inside i.e. Maksud, Wasim and Kadir baringone person aged about 18 years who brought liquor at the instance ofWasim who perhaps appears to be a juvenile. Therefore, it will bedifficult to rely on the version of the prosecutrix, who identified Sirajon the basis of guesswork as the person who accompanied Wasim andKadir, who entered in her room. I find force in submission of Mr. Daga,learned counsel that the Trial Court missed this aspect and erroneouslyconvicted Siraj for the offences punishable under Sections 450, 452, 36 cr-appeal-336-16+4.odt326, 354B r/w 34, 109, 114 and 149 of the IPC. The benefit of doubtgoes in favour of Siraj. Accordingly, we set aside the conviction of Sirajfor the aforesaid offences.46.This takes us to the findings of the Trial Court convictingappellants- Maksud, Wasim, and Kadir for the offence punishableunder Section 326 of the IPC and sentencing them to suffer rigorousimprisonment for 10 years.47.To accord a conviction under the offence punishable underSection 326 of the IPC, grievous hurt defined under Section 320 of theIPC is a sine qua non. The Trial Court relied on the Query Report(Exh-259) issued by Dr. Digambar Rathod (PW-20) wherein he opinedthat if complications arise, the injury caused to Dinesh may causedeath. Relying on Clause VIII of Section 320 of the IPC, the Trial Courtheld that any hurt which endangers life will come under the sweep ofgrievous hurt. Query Report (Exh-259) shows that if complicationsarise, only then the injuries caused to Dinesh will endanger his life. Itis a matter of record that both the Doctors recorded that the injuries onthe person of Dinesh and Rakesh are simple injuries. It cannot bedisputed that if complications arise even simple hurt may endangerlife. The purport of Clause VIII of Section 320 of the IPC is that hurtcaused by the offender must endanger life and it does not depend on 37 cr-appeal-336-16+4.odtthe condition of future complications that are likely to arise. Forinvoking Clause VIII of Section 320 of the IPC, the offender must causeinjury which itself endangers the life of the victim, which is absent inthis case. The finding of the Trial Court that grievous hurt was causedis not correct. The injuries caused to the person of Dinesh and Rakeshdo not come under the ambit of grievous hurt/injury. The convictionrecorded by the Trial Court against Maksud, Wasim and Kadir underSection 326 of the IPC does not stand for the reason that simple hurthas been caused by the baton and knife which is punishable underSection 324 of the IPC and not under Section 326. We, therefore, setaside the conviction of Maksud, Wasim and Kadir for the offencepunishable under Section 326 of the IPC and instead, we hold themguilty for the offence punishable under Section 324 of the IPC.INCIDENT OUTSIDE THE ROOM OF THE PROSECUTRIX48.We now turn to the incidence which occurred thereafter. Itis the version of the prosecutrix and Dinesh that Wasim, Kadir and thejuvenile in conflict with law brought them out of the room and putthem in the Tata Indica car. Dinesh was put on the back seat of theTata Indica car in an injured condition whereas, the prosecutrix wasmade to sit on the middle seat of the car and they took them toNandori Bifurcation. It is also the version of Dinesh that the juvenile inconflict with law as per direction, removed the wallet containing 38 cr-appeal-336-16+4.odtRs.3,000/- from the person of Dinesh. The prosecutrix’s version is thatthey put Dinesh on the Railway track. The version of Dinesh showshow he, who was in a drunken condition, was kept on the Railwaytrack by Wasim, Kadir and the juvenile in conflict with law twice andwhen the train came, he succeeded in saving his life by removinghimself from the Railway track. His version gets corroboration byrecovery of his shoe from the bushes near the Railway track. Hisversion that he was assaulted on the back of his head is alsocorroborated by the version of Dr. Morarji Kusnake (PW-15) and Dr.Digambar Rathod (PW-20), who found an injury on back of the head ofDinesh and opined that the injury may be caused with the help of aniron rod. The consistent version of Dinesh also gets support by thediscovery of blood from the wall of a School on the way to villageVilson where he stayed. The DNA report also reveals that his blood wasfound on his shirt, seat cover of the Tata Indica car as well as on theclothes of the prosecutrix. Ganesh Gajanan Dethe (PW-17) and VivekZade (PW-21), the employees of the Railways who were on patrollingduty in wee hours of 06.11.2014 met Dinesh in an injured conditionand under the influence of liquor. Dinesh succeeded to contact hisemployer Gangadhar Nagorao Bhoyar (PW-16) through thesewitnesses who deposed that Gangadhar Nagorao Bhoyar (PW-16) camethere, took him to Chandrapur and got him admitted to the Hospital. 39 cr-appeal-336-16+4.odtThe version of Dinesh is corroborated in many words by GaneshGajanan Dethe (PW-17), Vivek Zade (PW-21), Gangadhar Bhoyar (PW-16) and other evidences. 49.At this juncture, it will also be proper to state that Rakesh,after returning from the room of the prosecutrix again went to theroom of the prosecutrix alongwith Mahesh Gurunule, Mangesh Ukeand Dewa at about 2:30 am in the night. They found nobody insidethe room of the prosecutrix. This also corroborates the abduction ofthe prosecutrix and Dinesh and the incident that occurred in the junglewith Dinesh. In view of the voluminous evidence available on record,the Trial Court did not err in relying on the version of the prosecutrixand more particularly, Dinesh.50.Mr. Arjun Bobde, learned counsel for Wasim vehementlysubmitted that the injuries on the person of Dinesh were simpleinjuries. If it had been the intention of Wasim and the other accusedpersons to commit the murder of Dinesh, they would have left Dineshwith severe injuries to make sure that he dies. According to him, thisaspect has not been considered by the Trial Court. To buttress hissubmission, he seeks to rely on the decision of the Supreme Court in 40 cr-appeal-336-16+4.odtthe case of Sivamani and another Vs. State Represented by Inspector ofPolice 3, wherein it is held as under :-“10. Having considered the facts and circumstances ofthe case and submissions of learned counsel for theparties, this Court is convinced that the ImpugnedJudgment of the High Court requires to be interfered with.Admittedly, there is no allegation of repeated or severeblows having been inflicted. Even the injuries on PW1 andPW2 have been found to be simple in nature, which is anadditional point in the appellants’ favour.11. We are further inclined to accept the submissions of thelearned counsel for the appellants that from the materials onrecord, only offences under Sections 323 and 324 of the IPCcan be made out. As such, the convition under Section 307,IPC is unsustainable.”51.It is a settled principle of law that for recording convictionunder Section 307 of the IPC, injury is not a sine qua non and it is notnecessary that bodily injury capable of causing death should have beeninflicted. The Court has to see whether the act, irrespective of itsresult, was done with intention or knowledge and in accordance withthe circumstances mentioned in sub-Section 307 of the IPC. In thecase of Jage Ram Vs. State of Haryana 4, it has been held that justbecause a fatal injury was not sustained, that alone does not dislodgeSection 307 of the IPC. What is material is the intention of the accusedwhich can be gathered from surrounding circumstances including theactual injury, nature of weapon and severity of the blow. We muststate here that it has been proved that the accused persons put Dinesh,32023 SCC Online SC 158142015 (11) SCC 366 41 cr-appeal-336-16+4.odtwho was under the influence of liquor as proved in the CA report, onthe Railway track to make sure that he gets crushed under the Trainand does not survive. When he managed to save himself inspite ofbeing under the influence of liquor, the accused persons particularly,Kadir and the juvenile in conflict with law again brought him on theRailway track to make sure that he gets killed but fortunately, again hesucceeded in saving himself. Thus, from the facts which have beenbrought on record, it is clear that Wasim and Kadir alongwith thejuvenile in conflict with law tried to kill Dinesh by putting him on theRailway track to make sure that he gets crushed under the wheels ofthe Train. Therefore, we see no infirmity in the conviction recorded bythe Trial Court holding Wasim and Kadir guilty for the offencepunishable under Sections 307, 366 and 394 read with 34 of the IPC.GANG RAPE 52.As per the IPC, where a woman is raped by one or morepersons constituting a group or acting in furtherance of commonintention, all those persons shall be deemed to have committed theoffence of gang rape. It is the case of the prosecutrix that in theintervening night of 05.11.2014 and 06.11.2014 Wasim, Kadir and thejuvenile in conflict with law committed rape on her. 42 cr-appeal-336-16+4.odtSUBMISSIONS53.Mr. Arjun Bobde, learned counsel appearing on behalf ofWasim vehemently submitted that there was no injury on the privateparts of the prosecutrix. Though, hymen was ruptured but it was anold injury and no signs of force or restrain to penetrative assault wereseen. All these rule out the possibility of forceful rape much less gangrape. The material on record also does not suggest any injury exceptinjury on her elbow and below the right eye. According to him, if thealleged incidents of gang rape occurred on the ground in the jungleand if a person is raped on an earthy surface, particularly, if it is a caseof gang rape then injuries on other parts of the body, more particularlyon the back of the victim are bound to be present. Even the nailclippings of the prosecutrix suggest that no attempts were made by theprosecutrix to resist the accused. Therefore, all these suggest that noincident of rape occurred, much less gang rape. He further went on tosubmit that if forceful gang rape is committed then injury on theprivate part of the prosecutrix is one of the determining factors whichis conspicuously absent in this case.54.A strong reliance has been placed on the admission of theprosecutrix in her cross-examination that during sexual intercourse,semen spilled over her private parts and on her clothes. Taking help ofthis admission, Mr. Arjun Bobde, learned counsel vehemently 43 cr-appeal-336-16+4.odtsubmitted that the DNA report (Exh.333) emphatically mentioned thatno semen was found on the leggings of the prosecutrix which she woreat the time of the alleged incident. According to him, this itself goes toshow that the prosecutrix is deposing falsely about the incident and thefact that she was repeatedly raped by Wasim, Kadir and the juvenile inconflict with law. He further went on to submit that the DNA report ofthe vaginal swab and the pubic hair of the prosecutrix is alsoinconclusive. Therefore, Wasim and Kadir are entitled for benefit ofdoubt at the least. According to him, the version of the prosecutrix isnot corroborated with the DNA report and therefore, it will not be safeto rely on the version of the prosecutrix particularly, in light of the factthat the prosecutrix formerly had an intimate relationship with Wasim.Therefore, possibility of the prosecutrix deposing falsely cannot beruled out. Hence, the present accused persons, particularly Wasimshould be given the benefit of doubt by recording the order of acquittalagainst the charge of gang rape.55.Mr. Bobde would submit that even the Doctor was notsure and she has answered question no. 2 of the query report bystating that she cannot comment whether the prosecutrix wassubjected to gang rape. He further went on to submit that even theclothes of the prosecutrix did not have traces of earth of the jungle.Therefore, all these rule out the possibility of forceful sexual 44 cr-appeal-336-16+4.odtintercourse, more particularly gang rape. Therefore, the version of theprosecutrix in this regard is doubtful and cannot be believed. Tobuttress his submission, he seeks to rely on para nos. 11 and 12 of thejudgment in the case of Raju and others Vs. State of Madhya Pradesh 5,which reads as under :-“11.It cannot be lost sight of that rape causes the greatestdistress and humiliation to the victim but at the same time afalse allegation of rape can cause equal distress, humiliationand damage to the accused as well. The accused must also beprotected against the possibility of false implication, particularlywhere a large number of accused are involved. It must, further,be borne in mind that the broad principle is that an injuredwitness was present at the time when the incident happenedand that ordinarily such a witness would not tell a lie as to theactual assailants, but there is no presumption or any basis forassuming that the statement of such a witness is always corrector without any embellishment or exaggeration. 12.Reference has been made in Gurmit Singh's case[(1996) 2 SCC 384] to the amendments in 1983 to Sections375 and 376 of the India Penal Code making the penalprovisions relating to rape more stringent, and also to Section114-A of the Evidence Act with respect to a presumption to beraised with regard to allegations of consensual sex in a case ofalleged rape. It is however significant that Sections 113-A and113-B too were inserted in the Evidence Act by the sameamendment by which certain presumptions in cases ofabetment of suicide and dowry death have been raised againstthe accused. These two Sections, thus, raise a clear presumptionin favour of the prosecution but no similar presumption withrespect to rape is visualized as the presumption under Section114-A is extremely restricted in its applicability. This clearlyshows that in so far as allegations of rape are concerned, theevidence of a prosecutrix must be examined as that of aninjured witness whose presence at the spot is probable but itcan never be presumed that her statement should, withoutexception, be taken as the gospel truth. Additionally herstatement can, at best, be adjudged on the principle thatordinarily no injured witness would tell a lie or implicate aperson falsely. We believe that it is under these principles thatthis case, and others such as this one, need to be examined.”5(2008) 15 SCC 133 45 cr-appeal-336-16+4.odt56.He also relied upon the judgment in the case of SantoshPrasad @ Santosh Kumar Vs. State of Bihar 6,which reads thus :-“6. Having gone through and considered the deposition ofthe prosecutrix, we find that there are material contradictions.Not only there are material contradictions, but even the mannerin which the alleged incident has taken place as per the versionof the prosecutrix is not believable. In the examination-in-chief,the prosecutrix has stated that after jumping the fallencompound wall accused came inside and thereafter the accusedcommitted rape. She has stated that she identified the accusedfrom the light of the mobile. However, no mobile is recovered.Even nothing is on record that there was a broken compoundwall. She has further stated that in the morning at 10 O’clockshe went to the police station and gave oral complaint.However, according to the investigating officer a writtencomplaint was given. It is also required to be noted that eventhe FIR is registered at 4:00 p.m. In her deposition, theprosecutrix has referred to the name of Shanti Devi, PW 1 andothers. However, Shanti Devi has not supported the case of theprosecution. Therefore, when we tested the version of PW 5 -prosecutrix, it is unfortunate that the said witness has failed topass any of the tests of “sterling witness”. There is a variation inher version about giving the complaint. There is a delay in theFIR. The medical report does not support the case of theprosecution. FSL report also does not support the case of theprosecution. As admitted, there was an enmity/dispute betweenboth the parties with respect to land. The manner in which theoccurrence is stated to have occurred is not believable.Therefore, in the facts and circumstances of the case, we findthat the solitary version of the prosecutrix – PW 5 cannot betaken as a gospel truth at face value and in the absence of anyother supporting evidence, there is no scope to sustain theconviction and sentence imposed on the appellant and accusedis to be given the benefit of doubt.”57.Reliance is also placed on the case of Rai Sandeep @Deepu Vs. State (NCT of Delhi) 7, wherein in para no. 31 it is observedas under:-“31.When we apply the above principles to the case on hand,we find the prevaricating statements of the prosecutrix herself inthe implication of the accused to the alleged offence of gang6(2020) 3 SCC 4437(2012) 8 SCC 21 46 cr-appeal-336-16+4.odtrape. There is evidence on record that there was no injury onthe breast or the thighs of the prosecutrix and only a minorabrasion on the right side neck below jaw was noted whileaccording to the prosecutrix’s original version, the appellantshad forcible sexual intercourse one after the other against her. Ifthat was so, it is hard to believe that there was no other injuryon the private parts of the prosecutrix as highlighted in the saiddecision. When on the face value the evidence is found to bedefective, the attendant circumstances and other evidence haveto be necessarily examined to see whether the allegation of gangrape was true. Unfortunately, the version of the so called eyewitnesses to at least the initial part of the crime has notsupported the story of the prosecution. The attendantcircumstances also do not co-relate to the offence allegedagainst the appellants. Therefore, in the absence of propercorroboration of the prosecution version to the alleged offence,it will be unsafe to sustain the case of the prosecution.”58.Conversely, learned APP for the State vehementlysubmitted that the evidence of the prosecutrix is entitled to greatweightage even in absence of corroboration. She is not an accomplicebut her evidence is to be scrutinized as the evidence of an injuredwitness. The prosecutrix cannot be disbelieved even if the Doctorfound no sign of injury or restraint. According to him, the prosecutrixwas habitual to sexual intercourse and therefore, absence of injury onher private parts would not ruled out rape, more particularly, when theprosecutrix was under the influence of liquor which was forcefullyadministered to her by Wasim. To buttress his submission, he seeks torely on the judgment in the case of State of Rajasthan Vs. Biram Lal 8,wherein in para no. 15, the Supreme Court has held as under:-“15.We, therefore, find it difficult to sustain the order ofacquittal passed by the High Court in respect of the offenceunder Section 376 IPC. It is not the law that in every caseversion of the prosecutrix must be corroborated in material8AIR 2005 SC 2327 47 cr-appeal-336-16+4.odtparticulars by independent evidence on record. It all depends onthe quality of the evidence of the prosecutrix. If the Court issatisfied that the evidence of prosecutrix is free from blemishand is implicitly reliable, then on the sole testimony of theprosecutrix, the conviction can be recorded. In appropriatecases, the court may look for corroboration from independentsource or from the circumstances of the case before recordingan order of conviction. In the instant case, we find that theevidence of the prosecutrix is worthy of credit and implicitlyreliable. The other evidence adduced by the prosecution, in fact,provides the necessary corroboration, even if that wasconsidered necessary. The High Court on a clear misreading ofthe evidence on record, acquitted the respondent of the chargeunder Section 376, IPC while upholding his conviction underSection 450, IPC.”CONSIDERATION59.Having heard Mr. Bobde, learned counsel appearing forappellant- Wasim and Mr. Tiwari, learned counsel appearing on behalfof Kadir as well as the learned APP, we have gone through the record.As per medical report, more particularly according to Dr. DiptiShrirame (PW10), there was no injury on the private part of theprosecutrix as well as other parts of the body except on the left elbowand below the right eye. As per the DNA report, no semen wasdetected on the leggings of the prosecutrix which she wore at the timeof the incident and no DNA came to be amplified from the public hair,vaginal swab and sputum sample of the prosecutrix.60.Evidently, there is no injury on the private parts of theprosecutrix inspite of having deposed that she was subjected torepeated sexual intercourse by Wasim, Kadir and the juvenile in 48 cr-appeal-336-16+4.odtconflict with law during the intervening night of 05.11.2014 and06.11.2014. However, at the same time, we cannot ignore the fact thatthe prosecutrix was made to drink large quantity of liquor and she wasunder the influence of it. This is evident from the CA report reflectingthe presence of Alcohol in the blood of the prosecutrix, the sample ofwhich was taken by Dr. Dipti Shrirame (PW10) in the afternoon of06.11.2014. The counsel for the appellants have themselves admittedthat Wasim and the prosecutrix knew each other prior to the incidentwhich suggests that they were well acquainted with each other priorto the alleged incident. Apart from that, the prosecutrix wassurrounded by three strong men and she was inebriated. These factorsare self explanatory as to why the prosecutrix did not resist when shewas being subjected to sexual assault. Rather, it was not the case thatphysical force was used by each one of them while committing sexualintercourse. The seizure panchnama of the leggings shows that it wassoaked with dust which proves that she was made to lie down on anearthy surface. The absence of injury on the back and other parts ofthe body of the prosecutrix inspite of repeated sexual intercourse bythe three of them has been sufficiently explained by the learned APP asthe prosecutrix was habitual to sexual intercourse. Therefore, absenceof injury on the body of the prosecutrix is already explained and itwould not be of any advantage to the accused. 49 cr-appeal-336-16+4.odt61.It will be appropriate to refer the case of State of UttarPradesh Vs. Chhotelal 9, wherein the Supreme Court in para no. 32 hasheld as under:-“32. Although the lady doctor, PW 5 did not find any injuryon the external or internal part of body of the prosecutrix andopined that the prosecutrix was habitual to sexual intercourse,we are afraid that does not make the testimony of theprosecutrix unreliable. The fact of the matter is that theprosecutrix was recovered almost after three weeks. Obviouslythe sign of forcible intercourse would not persist for that long aperiod. It is wrong to assume that in all cases of intercourse withthe women against will or without consent, there would besome injury on the external or internal part of the victim. Theprosecutrix has clearly deposed that she was not in a position toput up any struggle as she was taken away from her village bytwo adult males. The absence of injuries on the person of theprosecutrix is not sufficient to discredit her evidence; she was ahelpless victim. She did not and could not inform theneighbours where she was kept due to fear.”62.In the case of Rajendra @ Raja Bhat Vs. BajrangShankarpale Vs. State of Maharashtra10 it has been held as under:-“a] Absence of injury on private part of prosecutrix who is amother of grown up child, therefore absence of injuries on theprivate part of the prosecutrix would not rule out the rape.b] When evidence of prosecutrix is cogent, convincing andtrue, it can be acted upon without corroboration.c] Non-examination of doctor Cannot be fatal toprosecution case when the evidence led otherwise is sufficient,reliable and cogent and there is no good reason to disbelieve.”63.In the case of Vijay @ Chinee Vs. State of M. P. 11, it hasbeen observed that non resistance on the part of the prosecutrix cannotbe relied upon to demonstrate that the conduct of prosecutrix was9(2011) 2 SCC 550102009 ALL MR (CRI) 3534112010 ALL MR (CRI) 3326 50 cr-appeal-336-16+4.odtunnatural as it could be due to fear. It could not be assumed that theprosecutrix consented to the act, even if she was a major. Conviction ofthe accused was held to be proper.64.In the case of Maroti Domaji Sadmake Vs. State 12, it hasbeen held that while appreciating evidence in a case of rape, mereabsence of medical evidence to prove sexual intercourse would not beenough to reject strong, truthful and reliable evidence of theprosecutrix.65.In the case of Radhakrishna Nagesh Vs. State of AndhraPradesh 13 in para nos. 19 to 22 of the judgment, it has been held asunder:-“19. It is a settled principle of law that a conflict orcontradiction between the ocular and the medical evidence hasto be direct and material and only then the same can bepleaded. Even where it is so, the Court has to examine as towhich of the two is more reliable, corroborated by otherprosecution evidence and gives the most balanced happening ofevents as per the case of the prosecution.20. The absence of injuries on the back and neck of thevictim girl can safely be explained by the fact that she was luredinto the offence rather than being taken by using physical forceon her. The preparation, attempt and actual act on the part ofthe accused is further clear from the fact that he had purchasedbangles which he had promised to her and thereafter had takenher into the tennis court store room, the key of which was withhim. This is also corroborated from the fact that even vide Ext.P-3, the lehenga as well as the bangles, coated with goldencolour were recovered by the Investigating Officer, S.M. Khaleel,PW11.*****122012 ALL MR (CRI) 57513(2013) 11 SCC 688 51 cr-appeal-336-16+4.odt22. In order to establish a conflict between the ocularevidence and the medical evidence, there has to be specific andmaterial contradictions. Merely because, some fact was notrecorded or stated by the doctor at a given point of time andsubsequently such fact was established by the expert report, theFSL Report, would not by itself substantiate the plea ofcontradiction or variation. The absence of injuries on the bodyof the prosecutrix, as already explained, would not be of anyadvantage to the accused.”66.Concededly, the prosecutrix has admitted in her cross-examination that semen spilled over her private part and on herclothes. Whereas, the DNA report indicates absence of semen on theleggings which the prosecutrix wore during the intervening night of05.11.2014 and 06.11.2014. The DNA report further exhibits that theDNA could not be amplified from the pubic hair, vaginal swab andsputum sample of the prosecutrix. Further cross-examination of theprosecutrix reveals that she has in categorical terms deposed that aftereach sexual intercourse, she put on the leggings. This indicates thatbefore every sexual intercourse, the leggings were removed. In thatscenario, there is no question of presence of semen on the leggingswhich has been duly dealt with by the Trial Court. Lastly, perhaps thesemen might have spilled on the inner-wear/underwear of theprosecutrix which was not seized during the investigation andtherefore, it was not subjected to DNA analysis. Thus, in wake of theversion of the prosecutrix that on every occasion of sexual intercourse,the leggings were removed, absence of semen on the leggings will notbe beneficial to Wasim and Kadir. Just because the underwear of the 52 cr-appeal-336-16+4.odtprosecutrix was not seized, which is the fault of the InvestigatingOfficer, the benefit of doubt cannot be extended to the appellants. Sofar as inconclusive DNA report of pubic hair, vaginal swab or sputumsample are concerned, just because the DNA could not be amplified,the prosecutrix cannot be blamed for it. Here is not a case ofcontradiction between ocular and medical evidence so as to doubt thetestimony of the prosecutrix. Reference can be made to para 19 of thedecision in the case of Radhakrishna Nagesh (supra).67.Before considering whether the sole testimony of theprosecutrix can be relied upon, we must refer to the decisions of theSupreme Court on this aspect. In the case of Deepshikha Vs. Vibha 14,the Supreme Court has held as under:-“a] Evidence of prosecutrix is entitled to great weight, evenin absence of corroboration. She is not an accomplice.Corroboration is not a sine quo non for conviction in rape case.b] Testimony of prosecutrix cannot be disbelieved even ifthe doctor, in a given case, finds no sign of rape.c] Court must deal such cases with utmost sensitivity. Theyshould examine insignificant discrepancies in the statement ofprosecutrix.d] If totality of the circumstances appearing on recorddiscloses that prosecutrix does not have strong motive to falselyinvolve the person charged, court should ordinarily have nohesitation in accepting the evidence.”68. In State of Maharashtra v. Chandraprakash KewalchandJain15, the Supreme Court held that a woman who is the victim of142008 ALL MR (CRI) 258315(1990) 1 SCC 550 53 cr-appeal-336-16+4.odtsexual assault is not an accomplice to the crime but is a victim ofanother person's lust and therefore, her evidence need not be testedwith the same amount of suspicion as that of an accomplice. The Courtobserved as under: (SCC p. 559, para 16) "16. A prosecutrix of a sex offence cannot be put on par withan accomplice. She is in fact a victim of the crime. TheEvidence Act nowhere says that her evidence cannot beaccepted unless it is corroborated in material particulars. She isundoubtedly a competent witness under Section 118 and herevidence must receive the same weight as is attached to aninjured in cases of physical violence. The same degree of careand caution must attach in the evaluation of her evidence as inthe case of an injured complainant or witness and no more.What is necessary is that the court must be alive to andconscious of the fact that it is dealing with the evidence of aperson who is interested in the outcome of the charge levelledby her. If the court keeps this in mind and feels satisfied that itcan act on the evidence of the prosecutrix, there is no rule oflaw or practice incorporated in the Evidence Act similar toIllustration (b) to Section 114 which requires it to look forcorroboration. If for some reason the court is hesitant to placeimplicit reliance on the testimony of the prosecutrix it may lookfor evidence which may lend assurance to her testimony shortof corroboration required in the case of an accomplice. Thenature of evidence required to lend assurance to the testimonyof the prosecutrix must necessarily depend on the facts andcircumstances of each case. But if a prosecutrix is an adult andof full understanding the court is entitled to base a convictionon her evidence unless the same is shown to be infirm and nottrustworthy. If the totality of the circumstances appearing onthe record of the case disclose that the prosecutrix does nothave a strong motive to falsely involve the person charged, thecourt should ordinarily have no hesitation in accepting herevidence." 69.In State of U.P. v. Pappu 16, the Apex Court held that evenin a case where it is shown that the girl is a girl of easy virtue or a girlis habituated to sexual intercourse, it may not be a ground to absolvethe accused from the charge of rape. It has to be established that16(2005) 3 SCC 594 54 cr-appeal-336-16+4.odtconsent was given by her for that particular occasion. Absence of injuryon the prosecutrix may not be a factor that leads the court to absolvethe accused. The Apex Court further held that conviction can be basedon the sole testimony of the prosecutrix and in case the court is notsatisfied with the version of the prosecutrix, it can seek other evidence,direct or circumstantial, by which it may get assurance of hertestimony. The Court further held as under: (SCC p. 597, para 12)“12. It is well settled that a prosecutrix complaining of havingbeen a victim of the offence of rape is not an accomplice afterthe crime. There is no rule of law that her testimony cannot beacted upon without corroboration in material particulars. Shestands at a higher pedestal than an injured witness. In the lattercase, there is injury on the physical form, while in the former itis both physical as well as psychological and emotional.However, if the court of facts finds it difficult to accept theversion of the prosecutrix on its face value, it may search forevidence, direct or circumstantial, which would lend assuranceto her testimony. Assurance, short of corroboration asunderstood in the context of an accomplice, would do."70. In State of Punjab v. Gurmit Singh 17, the Supreme Courtheld that in cases involving sexual harassment, molestation, etc. thecourt is duty-bound to deal with utmost sensitivity. Minorcontradictions or insignificant discrepancies in the statement of aprosecutrix should not be a ground for throwing out an otherwisereliable prosecution case. Evidence of a victim of sexual assault isenough for conviction and it does not require any corroboration unlessthere are compelling reasons for seeking corroboration. The court maylook for some assurances of her statement to satisfy judicial17(1996) 2 SCC 384 55 cr-appeal-336-16+4.odtconscience. The statement of the prosecutrix is more reliable than thatof an injured witness as she is not an accomplice. The Court observedas under: (SCC pp. 394 96 & 403, paras 8 & 21)"8. ... The court overlooked the situation in which a poorhelpless minor girl had found herself in the company of threedesperate young men who were threatening her and preventingher from raising any alarm. Again, if the investigating officerdid not conduct the investigation properly or was negligent innot being able to trace out the driver or the car, how can thatbecome a ground to discredit the testimony of the prosecutrix?The prosecutrix had no control over the investigating agencyand the negligence of an investigating officer could not affectthe credibility of the statement of the prosecutrix. ... The courtsmust, while evaluating evidence, remain alive to the fact that ina case of rape, no self respecting woman would come forwardin a court just to make a humiliating statement against herhonour such as is involved in the commission of rape on her. Incases involving sexual molestation, supposed considerationswhich have no material effect on the veracity of the prosecutioncase or even discrepancies in the statement of the prosecutrixshould not, unless the discrepancies are such which are of fatalnature, be allowed to throw out an otherwise reliableprosecution case. ... Seeking corroboration of her statementbefore relying upon the same, as a rule, in such cases amountsto adding insult to injury. ... Corroboration as a condition forjudicial reliance on the testimony of the prosecutrix is not arequirement of law but a guidance of prudence under givencircumstances. ...*****21. ... The courts should examine the broader probabilities of acase and not get swayed by minor contradictions orinsignificant discrepancies in the statement of the prosecutrix,which are not of a fatal nature, to throw out an otherwisereliable prosecution case. If evidence of the prosecutrix inspiresconfidence, it must be relied upon without seekingcorroboration of her statement in material particulars. If forsome reason the court finds it difficult to place implicit relianceon her testimony, it may look for evidence which may lendassurance to her testimony, short of corroboration required inthe case of an accomplice. The testimony of the prosecutrixmust be appreciated in the background of the entire case andthe trial court must be alive to its responsibility and be sensitivewhile dealing with cases involving sexual molestations."(emphasis in original) 56 cr-appeal-336-16+4.odt71. In State of Orissa v. Thakara Besra 18, the Supreme Courtheld that rape is not mere a physical assault, rather it often distracts(sic destroys) the whole personality of the victim. The rapist degradesthe very soul of the helpless female and therefore, the testimony of theprosecutrix must be appreciated in the background of the entire caseand in such cases, even non-examination of other witnesses may notbe a serious infirmity in the prosecution case, particularly where thewitnesses had not seen the commission of the offence.72. In State of H.P. v. Raghubir Singh 19, the Supreme Courtheld that there is no legal compulsion to look for any other evidence tocorroborate the evidence of the prosecutrix before recording an orderof conviction. Evidence has to be weighed and not counted. Convictioncan be recorded on the sole testimony of the prosecutrix, if herevidence inspires confidence and there is absence of circumstanceswhich militate against her veracity. A similar view has been reiteratedby the Supreme Court in Wahid Khan v. State of M.P.20 placing relianceon an earlier judgment in Rameshwar v. State of Rajasthan21.73.Thus, the law that emerges on the issue is to the effectthat the statement of the prosecutrix, if found to be worthy of credence18(2002) 9 SCC 8619(1993) 2 SCC 62220(2010) 2 SCC 921AIR 1952 SC 54 57 cr-appeal-336-16+4.odtand is reliable, requires no corroboration. The court may convict theaccused on the sole testimony of the prosecutrix.74.In the case of Krishan Kumar Malik v. State of Haryana22, itis observed and held by the Supreme Court that to hold an accusedguilty for commission of an offence of rape, the solitary evidence of theprosecutrix is sufficient, provided the same inspires confidence andappears to be absolutely trustworthy, unblemished and should be ofsterling quality. 75.Who can be said to be a “sterling witness”, has been dealtwith and considered by the Supreme Court in the case of Rai Sandeepalias Deepu v. State (NCT of Delhi)23. In paragraph 22, it is observedand held as under:“22. In our considered opinion, the “sterling witness” shouldbe of a very high quality and calibre whose version should,therefore, be unassailable. The court considering the version ofsuch witness should be in a position to accept it for its face valuewithout any hesitation. To test the quality of such a witness, thestatus of the witness would be immaterial and what would berelevant is the truthfulness of the statement made by such awitness. What would be more relevant would be the consistencyof the statement right from the starting point till the end,namely, at the time when the witness makes the initial statementand ultimately before the court. It should be natural andconsistent with the case of the prosecution qua the accused.There should not be any prevarication in the version of such awitness. The witness should be in a position to withstand thecrossexamination of any length and howsoever strenuous it maybe and under no circumstance should give room for any doubtas to the factum of the occurrence, the persons involved, as wellas the sequence of it. Such a version should have corelation with22(2011) 7 SCC 13023(2012) 8 SCC 21 58 cr-appeal-336-16+4.odteach and every one of other supporting material such as therecoveries made, the weapons used, the manner of offencecommitted, the scientific evidence and the expert opinion. Thesaid version should consistently match with the version of everyother witness. It can even be stated that it should be akin to thetest applied in the case of circumstantial evidence where thereshould not be any missing link in the chain of circumstances tohold the accused guilty of the offence alleged against him. Onlyif the version of such a witness qualifies the above test as well asall 12 other such similar tests to be applied, can it be held thatsuch a witness can be called as a “sterling witness” whoseversion can be accepted by the court without any corroborationand based on which the guilty can be punished. To be moreprecise, the version of the said witness on the core spectrum ofthe crime should remain intact while all other attendantmaterials, namely, oral, documentary and material objectsshould match the said version in material particulars in order toenable the court trying the offence to rely on the core version tosieve the other supporting materials for holding the offenderguilty of the charge alleged.” 76.What is deduced from the decisions of the Supreme Courtreferred above is that in case of rape, the Court must while evaluatingthe evidence stay mindful of the facts of the case. The evidence of thevictim is on the highest pedestal and is to be treated at par with that ofan injured witness. Corroboration is not a sine qua non for recordingconviction in a rape case. The conviction can solely be based on theevidence of the victim, if it is trustworthy, unblemished and of asterling quality. 77.In the light of the legal principles discussed above, we willnow consider whether it is safe to convict the accused solely on theevidence of the prosecutrix in absence of supporting medical evidence 59 cr-appeal-336-16+4.odtand whether the evidence of the prosecutrix inspires confidence, istrustworthy, unblemished and of a sterling quality.78.From the version of the prosecutrix, it is revealed thatafter putting Dinesh on the Railway track, Wasim, Kadir and thejuvenile in conflict with law took her to Nagpur Road and halted theirvehicle near a Dhaba. Wasim and Kadir alighted from the vehicle andwent towards the Dhaba. The juvenile in conflict with law madephysical relations with the prosecutrix and thereafter, proceededahead. At about 4:30 am in the jungle, they made the prosecutrixdescend from the vehicle. Wasim committed sexual intercourse withthe prosecutrix and thereafter, Kadir also committed sexual intercoursewith her. The third incident of rape, according to the prosecutrix, wasat about 9:00 to 9:30 am between chhota Shegaon and Tadoba roadwhere they made her get down from the vehicle and thereafter, Wasimand Kadir had sexual intercourse with her. Dr. Dipti Shrirame (PW10),who clinically examined the prosecutrix has found two injuries on theperson of the prosecutrix i.e. abrasion over right elbow and contusionbelow right eye with swelling. On genital examination of theprosecutrix, she found that her hymen was torn as a result of an oldinjury and two fingers were easily inserted. Ultimately, she opined thatthe prosecutrix was subjected to sexual intercourse. She also took 60 cr-appeal-336-16+4.odtblood sample, vaginal swab and pubic hair of the prosecutrix andsealed it.79.The incident inside the room has been duly proved by theprosecution wherein the prosecutrix and Rakesh were stripped andwere made to give posses in sexually compromising positions. Rakeshwas asked to go and Dinesh and the prosecutrix were abducted byWasim, Kadir and the juvenile in conflict with law and they were takenaway in the car. They put Dinesh on the Railway track and thereafter,took the prosecutrix along with them towards to Nagpur- Chandrapurroad, in particular, Tadoba.80.Further, the version of Rupesh Pande (PW19), who on06.11.2014, at the instance of Goldi and Jobi took the Tata Sumo car toSindewahi and brought Wasim, Kadir and the juvenile in conflict withlaw reveals that at Adilabad, Wasim and Kadir alighted whereas, thejuvenile in conflict with law, after noticing that the Police vehicle wasfollowing their Tata Sumo, fled away whereas Rupesh Pande (PW19)Goldi and Jobi were caught by the Police squad which was searchingfor them after receipt of the information of the incident. All thismaterial cogently establishes that after putting Dinesh on the Railwaytrack, Wasim, Kadir and the juvenile in conflict with law took theprosecutrix in their car. 61 cr-appeal-336-16+4.odt81.The prosecutrix narrated the incident of repeated sexualintercourse by the three and gave a detailed account of the possibleevents. The version of the prosecutrix on the incident that happenedprior to the gang rape is fully corroborated by other clinching andcogent evidence. There is no reason to doubt her testimony over theincident of gang rape. The factum of snapping photographs andrecording videos of the prosecutrix and Rakesh in naked andcompromising positions by Wasim clearly establishes that Wasim andKadir took the prosecutrix into the jungle, leaving Dinesh on theRailway track, with a perverted mindset to exploit her sexually. Thisalso supports the constant version of the prosecutrix on gang rapecommitted by the three of them. Just because she could not tell theroute and the place of incident of rape in the jungle, her evidence cannot be discarded. One cannot remain oblivious to the fact that theprosecutrix was taken into the dense forest near Tadoba and chhotaShegaon in the night. That apart, she was inebriated and therefore,was not fully conscious. The incident happened at night in a denseforest near Tadoba. In such a scenario, it cannot be expected from afrightened woman to remember the route and the spot of incident in adense forest, more particularly at night. Though, there are some minorcontradictions and discrepancies in the version of the prosecutrix butthey do not make her version unreliable. 62 cr-appeal-336-16+4.odt82.In the case of Sham Singh Vs. State of Haryana24, theSupreme Court has held as under:-“6. We are conscious that the courts shoulder a greatresponsibility while trying an accused on charges of rape. Theymust deal with such cases with utmost sensitivity. The courtsshould examine the broader probabilities of a case and not getswayed by minor contradictions or insignificant discrepancies inthe statement of the prosecutrix, which are not of a fatal nature,to throw out an otherwise reliable prosecution case. If theevidence of the prosecutrix inspires confidence, it must berelied upon without seeking corroboration of her statement inmaterial particulars. If for some reason the court finds itdifficult to place implicit reliance on her testimony, it may lookfor evidence which may lend assurance to her testimony, shortof corroboration required in the case of an accomplice. Thetestimony of the prosecutrix must be appreciated in thebackground of the entire case and the court must be alive to itsresponsibility and be sensitive while dealing with casesinvolving sexual molestations or sexual assaults. [see State ofPunjab vs. Gurmit Singh, [(1996) 2 SCC 384] (para21).”83.We find that the prosecutrix has passed the test of asterling witness as held in the case of Rai Sandeep @ Deepu (supra).The version of the prosecutrix on repeated sexual intercourse isreliable and can be safely acted upon particularly, considering the factthat the prosecutrix lodged the first information report on the verynext day. The version of the prosecutrix is found to be consistent rightfrom the incident near the room; inside the room and outside theroom. Her version matched with the version of every other witnessand other evidence. The Trial Court has rightly considered herevidence as worthy of credit.24(2018) 18 SCC 34 63 cr-appeal-336-16+4.odt“NO MEANS NO”84.An attempt has been made to question the morals of theprosecutrix. No doubt, the prosecutrix was an estranged wife andwithout getting divorced from her husband, she was residing withDinesh. Even from her evidence, this material was brought in hercross-examination to suggest that she had an intimate relationship withWasim before she started residing with Dinesh in a live-in-relationshipinspite of the fact that her previous marriage was subsisting. Eventhen, a person cannot force a woman to have intercourse with himwithout her consent.85.We feel it appropriate to state that rape in its simplestterm is “Ravishment of a woman without her consent by force, fear orfraud.” Sexual violence diminishes law and thus, unlawfullyencroaches on the privacy of a woman. Rape cannot be treated only asa sexual crime but it should be viewed as a crime involving aggressionwhich leads to the domination of the prosecutrix. It is a violation ofher right of privacy. Rape is the most morally and physicallyreprehensible crime in society, as it is an assault on the body, mind andprivacy of the victim. Rape objectifies a woman and thereby shakesthe very core of her life. Sexual intercourse on one hand givespleasure to the participants including a woman but if it is done withoutconsent of the woman, it is an assault on her body, mind and privacy. 64 cr-appeal-336-16+4.odtTherefore, it is an offence if sexual intercourse is done without theconsent of a major woman of the age of 18 years and above. A womanwho says “NO” means “NO”. There exists no further ambiguity andthere could be no presumption of consent based on a woman’s socalled “immoral activities”. Therefore, even though there may havebeen a relationship between the prosecutrix and Wasim in the past butif the prosecutrix was not willing to have sexual intercourse withWasim, his colleague Kadir and the juvenile in conflict with law, anyact without her consent would be an offence within the meaning ofSection 375 of the IPC. A woman who consents to sexual activitieswith a man at a particular instance does not ipso facto give consent tosexual activity with the same man at all other instances. A woman’scharacter or morals are not related to the number of sexual partnersshe has had in wake of Section 53A of the Indian Evidence Act. Theintimacy, if any, will not absolve Wasim, at the most, this will berelevant while considering the punishment. Thus, we are of theopinion that the Trial Court was right in holding that the prosecutionhas proved that Wasim and Kadir have committed the offence of gangrape punishable under Section 376D of the IPC. 86.Sofar as conviction recorded by the Trial Court againstWasim and Kadir for the offence punishable under Section 506-II of theIPC is concerned, the learned Judge relied on the version of the 65 cr-appeal-336-16+4.odtprosecutrix that Wasim and Kadir were discussing amongst themselvesthat the prosecutrix will go to the Police and will lodge a complaintagainst them. Therefore, it is better to kill her. From this version it isnot clear whether they really threatened her as they were merelydiscussing amongst themselves. Even otherwise, the fact deposed bythe prosecutrix does not suggest that they threatened her with anintention to cause her not to lodge the complaint against them.Therefore, the ingredients of criminal intimidation are not made out.We hold that the conviction recorded by the Trial Court against Wasimand Kadir for the offence punishable under Section 506-II of the IPC isnot sustainable.87.Sofar as the material against Jobi is concerned, the versionof Rupesh Pande (PW19) is abundantly clear on the fact that he, on thepretext of medical emergency, asked him to accompany them to pickup Wasim, Kadir and the juvenile in conflict with law with intent toprotect them from arrest. The reason for visiting Sindewahi is itselfevident that he was harboring Wasim, Kadir and the juvenile in conflictwith law with intention of protecting them from legal punishment.CONCLUSION88.To conclude, the Trial Court has rightly held Maksud guiltyfor the offence punishable under Sections 450, 452, 354A and 354B 66 cr-appeal-336-16+4.odtr/w Section 34 of the IPC and Section 66E of the IT Act except for theoffence punishable under Sections 506-II and 326 of the IPC.89.The conviction of Wasim for the offence punishable underSections 450, 452, 366, 354A, 354B, 354C, 376D, 307, 201, 394 r/w.34 of the IPC as well as conviction under Section 66E of the IT Act r/w.Section 34 of the IPC is completely justified except for the offencepunishable under Section 506-II and 326 of the IPC. Conviction underSection 326 of the IPC is converted into Section 324 of the IPC.90.Likewise, the conviction of Kadir for the offencespunishable under Sections 450, 452, 366, 354A, 354B, 376D, 307 and394 r/w. 34 of the IPC as well as Section 66E of the IT Act is upheld.His conviction under Section 326 of the IPC is converted into Section324 of the IPC and he is acquitted under Section 506-II of the IPC.Thus, Maksud, Wasim and Kadir are guilty for the offence punishableunder Section 324 of the IPC.91.We also concur with the findings of the Trial Courtconvicting appellant- Jobi for the offence punishable under Section 212r/w Section 34 of the IPC. However, we could not endorse theconviction imposed by the Trial Court on Siraj. We give him thebenefit of doubt. 67 cr-appeal-336-16+4.odtPUNISHMENT92.Now, we propose to examine the punishment imposed bythe Trial Court. In the case of State of M.P. Vs. Munna Choubey 25, inpara nos. 12 and 13, it has been held as under:-“12.Proportion between crime and punishment is a goalrespected in principle, and in spite of errant notions, it remainsa strong influence in the determination of sentences. Thepractice of punishing all serious crimes with equal severity isnow unknown in civilized societies, but such a radical departurefrom the principle of proportionality has disappeared from thelaw only in recent times. Even now for a single grave infractiondrastic sentences are imposed. Anything less than a penalty ofgreatest severity for any serious crime is thought then to be ameasure of toleration that is unwarranted and unwise. But infact, quite apart from those considerations that makepunishment unjustifiable when it is out of proportion to thecrime, uniformly disproportionate punishment has some veryundesirable practical consequences.13.After giving due consideration to the facts andcircumstances of each case, for deciding just and appropriatesentence to be awarded for an offence, the aggravating andmitigating factors and circumstances in which a crime has beencommitted are to be delicately balanced on the basis of reallyrelevant circumstances in a dispassionate manner by the Court.Such act of balancing is indeed a difficult task. It has been veryaptly indicated in Dennis Councle McGDautha v. State ofCallifornia: [402 US 183] that no formula of a foolproof natureis possible that would provide a reasonable criterion indetermining a just and appropriate punishment in the infinitevariety of circumstances that may affect the gravity of thecrime. In the absence of any foolproof formula which mayprovide any basis for reasonable criteria to correctly assessvarious circumstances germane to the consideration of gravityof crime, the discretionary judgment in the facts of each case, isthe only way in which such judgment may be equitablydistinguished.”93.Maksud, Wasim and Kadir have already undergone thesentence imposed for the offences punishable under Sections 450, 452,354A, 354B, 354C and 366 of the IPC. The defense has also not25(2005) 2 SCC 710 68 cr-appeal-336-16+4.odtpressed much for reduction of the sentence in these offences but Mr.Bobde, learned counsel appearing on behalf of Wasim and Shri Tiwari,learned counsel appearing on behalf of Kadir submitted that there aremitigating circumstances which require consideration for reduction inthe sentence imposed by the Trial Court. Mr. Bobde, learned counselappearing on behalf of Wasim submitted that the prosecutrix wasknown to Wasim, rather there was an intimate relationship betweenthem. Also, Wasim has a daughter who needs her father around. Whenthe offence was committed, he was in his thirties and has suffered thesentence for more than 10 years. Nothing has been reported by theJail Authority regarding the conduct of Wasim and Kadir. There are nocriminal antecedents of Wasim and Kadir. This is their first offence andtherefore, the incident which occurred was not pre-planned andbecause of the peculiar circumstances, Wasim and Kadir committed theact. Therefore, it is submitted that a lenient view may be taken andtheir punishment be reduced to the extent of the period which theyhave already undergone.94.The Trial Court sentenced Wasim and Kadir forimprisonment for life for the offence punishable under Section 307 ofthe IPC and for remainder of their natural life for the offencepunishable under Section 376D of the IPC. We are mindful of the factthat rape is a heinous crime much less gang rape and it is an offence 69 cr-appeal-336-16+4.odtagainst the vulnerable section of the society i.e. woman hence, theoffender of such a crime is to be dealt with heavy hands.95.One of the principles of punishment is that punishmentshould be proportionate with the crime and shall be awardedaccording to the offence. For deciding the appropriate sentence, abalance has to be maintained between the aggravating and mitigatingcircumstances in which the crime has been committed. Imposition ofpunishment in a rape case depends upon the degree of atrocity ofcrime, conduct of the criminal and the defenseless and unprotectedstate of the victim.96.Turning to the present case, from the tenor and version ofthe prosecutrix, it is revealed that Wasim and the prosecutrix kneweach-other. Rather, it appears that there was an intimate relationshipbetween the prosecutrix and Wasim due to which Wasim’s family lifewas disturbed. The prosecutrix started residing with Dinesh due towhich Wasim got jealous and every now and then an attempt wasmade by Wasim to make sure that the prosecutrix should be physicallyinvolved only with him and nobody else. He could not succeed and theincident of the prosecutrix with Maksud gave him a reason to give adesign to the crime, which he then committed. It is also a matter ofrecord that Wasim and Kadir did not cause any grievous injury to the 70 cr-appeal-336-16+4.odtprosecutrix during the incident. Considering the above facts and thefact that Wasim has a daughter who needs her father around; and thatno incident of misbehavior or cruelty is reported by the Jail Authority,we propose to reduce the imprisonment of Wasim and Kadir fromimprisonment for remainder of their natural life to rigorousimprisonment for 20 years.97.Likewise, considering the facts and circumstances of thecase as well as the injury on the person of Dinesh, we also reduce thesentence of imprisonment for life to rigorous imprisonment for 10years for the offence punishable under Section 307 of the IPC.98.Sofar as Jobi is concerned, Mr. Vyas his learned counselprayed for leniency. Considering his age and the fact that he wasworking under Wasim due to which he obeyed the orders of his master,imprisonment for 3 years is reduced to the period of the imprisonmentwhich he has already undergone. Resultantly, we proceed to pass thefollowing order:-i)Criminal Appeal Nos. 325/2016, 336/2015, 346/2015 and352/2016 are partly allowed.ii)The conviction of Maksud Sheikh Gaffur Sheikh and thesentence as well as the fine imposed upon him for the offence 71 cr-appeal-336-16+4.odtpunishable under Section 450, 452, 354A and 354B r/w. Section 34 ofthe IPC and under Section 66E of the IT Act are maintained. Hisconviction under Section 326 r/w Sections 34, 149, 109 and 114 of theIPC is altered to Section 324 r/w. 34 of the IPC and he is sentenced tosuffer rigorous imprisonment for 3 years with fine as imposed by theTrial Court. All the sentence shall run concurrently.iii)The conviction of Wasim Khan Ajim Khan and the sentenceand fine imposed upon him for the offence punishable under Sections394, 201, 450, 452, 366, 354A, 354B and 354C r/w. 34 of the IPC andSection 66E of the IT Act are maintained. His conviction under Section326 r/w. Sections 34, 149, 109 and 114 of the IPC is altered to Section324 r/w. 34 of the IPC and he is sentenced to suffer rigorousimprisonment for 3 years with fine as imposed by the Trial Court. Allthe sentence shall run concurrently.iv)The conviction of Sheikh Kadir Sheikh Jakir and thesentence as well as fine imposed upon him for the offences punishableunder Sections 450, 452, 354A and 354B, 366 and 394 r/w. Sections34 of the IPC and under Section 66E of the IT Act are maintained. Hisconviction under Section 326 r/w. Sections 34, 149, 109 and 114 ofthe IPC is altered to Section 324 r/w. 34 of the IPC and he is sentenced 72 cr-appeal-336-16+4.odtto suffer rigorous imprisonment for 3 years with fine as imposed by theTrial Court. All the sentence shall run concurrently.v) The conviction of Wasim Khan Ajim Khan and SheikhKadir Sheikh Jakir for the offence punishable under Section 307 r/w.34 of the IPC is maintained. However, rigorous imprisonment for life isreduced to rigorous imprisonment for 10 years with the fine imposedby the Trial Court.vi)The conviction of Wasim Khan Ajim Khan and SheikhKadir Sheikh Jakir for the offence punishable under Section 376D ofthe IPC is also maintained. However, the sentence is reduced fromrigorous imprisonment for remainder of their natural life to rigorousimprisonment for 20 years with fine as imposed by the Trial Court.vii)Appellant Sirajkhan Pathan @ Raja Shaadat Khan Pathanis acquitted of the offences punishable under Sections 326, 450, 452,354B r/w Sections 34, 149, 109, 114 of the IPC alongwith Section 66Eof the IT Act r/w Sections 34, 149, 109 and 114 of the IPC.viii)The conviction and sentence imposed on Jobi AshokanWelythan for the offence punishable under Section 212 r/w. 34 of theIPC is maintained. However, his sentence of rigorous imprisonment 73 cr-appeal-336-16+4.odtfor 3 years is reduced to the period which he has alreadyundergone.ix)The conviction of Maksud Sheikh Gaffur Sheikh, WasimKhan Ajim Khan and Sheikh Kadir Sheikh Jakir and the sentence andfine imposed upon them for the offences punishable under Section506(II) r/w Sections 34, 109 and 114 of the IPC is hereby set aside andthey are acquitted of the said offences.x)Accused are entitled for set off in terms of Section 428 ofthe Criminal Procedure Code, for the period already undergone. xi)Needless to mention that the juvenile in conflict with lawhas been tried separately and therefore, the observations with regardto the juvenile in conflict with law are limited to the extent of decidingthe present appeals and will not affect his case.In the above said terms, the appeals are disposed of.(M. W. CHANDWANI, J.) (NITIN B. SURYAWANSHI, J.)RR Jaiswal