Sawailal and Another vs State

Satya Prakash Pathak, J.—These two criminal appeals have been filed u/s 374(2) of the Criminal Procedure Code against a common judgment and order dated 13.3.1987 passed by learned Addl. District & Sessions Judge, Chittorgarh in Sessions Case No. 22/1985 - State vs. Basantilal & Ors. whereby the accused appellants have been convicted and sentenced as under:-

Basantilal, SawailalChunnilal, Nainsukh and Kana

Under Section 376(2)(g) IPC

10 years regirous imprisonment with a fine of Rs.200/-, in default further undergo one year''s rigorous imprisonment.

Moda & Barda

Under Section 376(2)(g) IPC

11 years rigorous imprisonment with a fine of Rs.200/-, in default to further undergo one year''s rigorous imprisonment.

As accused-appellants Basantilal s/o Maganlal, Chunnilal s/o Bhoja and Nainsukh s/o Hardeo in S.B.Criminal AppealNo. 103/1987 have expired and report of the SHO, Police Station, Begu in this regard was placed on record, vide order of this Court dated 4.11.2004 that appeal against the these appellants stands abated. Since both the appeals arise out of the same impugned judgment and order, these are being disposed of together by this common judgment.

The brief facts of the case are that PW3 Chaturbhuj alongwith PW5 Mst. Badami (hereinafter to be referred as ''the prosecutrix'') submitted a written report in the police station, Begu before PW7 Roop Kishore, ASI on 3.5.1985 at 1.00 PM inter alia stating therein that her niece - the prosecutrix had gone to her Bua (parental aunt) in Katunda village and stayed there for two days. His brother Raghunath had gone to his in-law''s house and he himself had gone with a truck of stones to village Kehrad and on his coming from there he was informed by the prosecutrix that while she was coming alone on foot from Katunda (the village of her Bua) on 26.4.1985, in the evening at about 5.00 PM, on the way to Bedal Mandana, in the forest, two persons Moda and Barda, who were taking liquor by the side of way, came in front of her, stopped her and pressed her breasts. They tightened her hands by the turban (Moda''s turban) and when she resisted and objected to it, accused Moda took out a knife and thereafter both of them forcibly laid her down on the earth. They poured liquor in her mouth and after releasing her hands and lifting her petticoat one after another committed rape against her will. They also took her forcibly upto the turn of village Katunda. After reaching there, from a liquor shop where so many persons were taking liquor, accused Basantilal (since expired), came at the house of Barda and Moda and committed rape with her. Thereafter also, one after another about 8-9 persons outraged her modesty. The accused at about 3-4 AM left her outside in a very precarious condition. In the morning, Chhittar s/o Gopi Gurjar, resident of village Katunda met her on the way to whom she narrated the entire story and requested him to drop her at her house, who made arrangement for her going to the village in a truck belonging to one Parbat Singhji. As Raghunath, the brother of the prosecutrix, was not at home and the complainant came in the morning, the prosecutrix narrated the incident to him and as such the report Ex. P/1 was submitted in the police station, on which case No. 78/85 u/s 341, 342, 354 and 376 IPC registered and investigation commenced.

During the course of investigation, memos Ex.P/6 Inspection Note dated 4.5.1985 of the site, Ex.P/7 Site-plan thereof, Ex.P/8.Site Inspection Note of the second place of occurrence, Ex.P/9 Site plan thereof, Ex.P/10 Seizure memo of the bangles pieces found at the spot, Ex.P/12 regarding the pieces of bangles handed over by the prosecutrix to the police and Ex.P/13 inspection note regarding injuries found on the person of the prosecutrix were prepared.

Prosecutrix was examined by PW2 Dr.S.S.Das. The medical examination report is Ex.P/2. The accused persons were arrested and medically examined. Their medical examination report is Ex. P/3. Ex. P/18 to Ex.P/24 respectively are the arrest memos of accused persons Basantilal, Sawailal, Chunnilal, Nainsukh, Moda Ram, Vardha and Kana.

After completion of investigation, challan was filed in the Court of Munsif Magistrate, Begu. On committal for trial, the matter came to the Court of Addl. District & Sessions Judge, Chittorgarh. On 28.2.1986, charges were framed under Sections 376(2) and 342 IPC against the accused persons, who denied the charges and claimed trial. In support of its case, the prosecution examined as any as 9 witnesses. After close of the prosecution evidence, in the statement Under recorded u/s 313 Cr.P.C. accused Sawailai has stated that he has been implicated in the case on account of enmity with the family of prosecutrix. Accused Moda Ram has stated that his daughter''s engagement with Bhanwarlal, the younger brother of prosecutrix, was cancelled therefore, he has been falsely implicated. Accused Barda in his statement has stated that Moda is his ''Sadu'' (his wife''s sister''s husband) and his daughter Jeetu, whose engagement was fixed with Chatra, the brother of prosecutrix, was also subsequently cancelled, therefore, he has been falsely implicated in the matter. Accused Kana in his statement has denied the prosecution case and stated that Moda is his cousin brother and there is enmity between their family and the family of the prosecutrix. In defence, DW1 Pyara, DW2 Abhay Kumar and DW3 Gopilal were got examined on behalf of the accused persons.

The learned Sessions Judge, after hearing both sides, convicted and sentenced the accused appellants as stated hereinabove.

Following submissions were made on behalf of the accused appellants:-

That the learned trial court has misread the evidence and has overlooked important facts which clearly shows that statements of prosecutrix are not of worth reliance.

That there has been inordinate delay in lodging the first information report of the incident inasmuch as the incident is alleged to have taken place on 26.4.1985 whereas the first information report was lodged on 30.5.1985 but no reasonable explanation has been furnished by the prosecution.

That the conduct of the prosecutrix was unnatural because she did not disclose the incident to anybody at home except PW3 Chatarbhuj after his arrival from his work.

That no description has been given in the first information report of the identified accused persons by her in the Court. It was not possible in the dark night to have identified the accused persons particularly in the circumstances when accused persons are relatives of the prosecutrix.

That the investigation is faulty. No precautions were taken in the instant case inasmuch as that the small pieces of clothes, alleged to have been used for wiping out the white discharge on the private parts of the prosecutrix were not send for chemical examination.

That Chunnilal and Sawailal being father and son and Moda being the real brother of Chunnilal would never indulge in such acts simultaneously.

That the engagement of daughter of accused Moda with the brother of the prosecutrix Bhanwarlal was cancelled and that was the reason for involving the accused persons in this case falsely.

That there are material contradictions and omissions in the story of prosecution which creates doubts in the truthfulness of the version of the prosecutrix.

The following submissions were made by the learned Public Prosecutor:-

That the prosecution has proved its case by placing on record trustworthy unimpeachable evidence of prosecutrix which has been corroborated by them medical testimony.

That no guardian would falsely involve a ward in such mattes leaving the actual culprits.

That the delay in lodging the first information report has been properly explained in the case.

That the defence theory that on account of enmity the accused persons have been involved, has been discarded by the learned trial Judge after assigning cogent reasons for the same.

That the minor contradictions and omissions in the statements of the prosecutrix and other witnesses are natural and on that basis the conviction recorded by the learned trial court, when otherwise inspires confidence, is not required to be set aside.

I have heard learned counsel for the appellants as well as the learned Public Prosecutor for the State and perused the material available on record.

Before proceeding further, in view of the submissions made, it shall be proper to examine as to what law has developed on the point of appreciation of testimony of the prosecutrix and regarding delay in filing first information report of the incident in such matters.

In the case of State of Maharashtra Vs. Chandraprakash Kewalchand Jain, the Hon''ble Apex Court held:-

The Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Court should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a part with the evidence on an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted is considered to be a good witness in the sense that he is least likely to shield to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person''s lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon Corroboration even if, then as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.

In the aforesaid case, the Hon''ble Apex Court further held as under :-

A prosecutrix of a sex offence cannot be put on a part with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness u/s 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case discussed that the prosecutrix does not have strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence.

In the case of State of Punjab vs. Gurmeet Singh & Ors., 1996 (2) SCC 374, the Hon''ble Supreme Court took note of the existing rate of crime against the woman and held:-

Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman''s rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim''s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - It is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Court, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance on her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive of its responsibility and be sensitive while dealing with cases involving sexual molestation.

The Hon''ble Apex Court, while dealing with regard to discrepancies in the statements of the witnesses, in the case of Leela Ram (Dead) Through Duli Chand Vs. State of Haryana and Another, held;-

There is bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the Contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eye-witnesses unbelievable. Trivial discrepancies ought to obliterate an otherwise acceptable evidence... The court shall have to bear in mind that different witnesses react differently under different situations : whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not failing within a set pattern is unproductive and a pedantic exercise.

In the case of State of Himachal Pradesh vs. Lekh Ram & Anr., 2000 CrLR 7 (SC), the Hon''ble Supreme Court has held that the absence of test identification may not be fatal if the accused is known or sufficiently described in the complaint leaving no doubt-in the mind of the Court regarding his involvement. In that very case, the Hon''ble Court has observed:-

....The hyper-technicalities or figment of imagination should not be allowed to divest the Court of its responsibility of sifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstances keeping in view the peculiar facts of each case, the social position of the victim and the accused, the larger interests of the society particularly the law and order problem and degrading values of life inherent in the prevalent system. The realities of life have to be kept i mind while appreciating the evidence for arriving at the truth. The Courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hyper-technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial. Criminal jurisprudence cannot be considered to be a Utopian through but have to be considered as part and parcel of the human civilization and the realities of life. The Courts cannot ignore the erosion in values of life which are a common feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting society and the mankind.

In the case of Narayan Iranna Potkanthi Vs. State of Maharashtra, while examining the matter on delay, Bombay High Court observed as under:-

It was contended in the context of the first information report that, though the incident had taken place on 5.1.1990, the incident was reported at the police station only on 6.1.1990 and that too, as late as at about 3.30 PM. True it is that there was some delay in lodging the first information report but, this delay has been properly explained, both by Gangabai and Gangadhar (PW1). PW5, Gangabai was an illiterate woman and it appears from her evidence that on account of the shock sustained by her due to the sexual violence meted out to her child, she had broken in tears immediately. Once can imagine how she must have taken some time to take some decision in the matter.

In the case of Kali Charan Vs. The State (Delhi Administration), the Hon''ble Delhi High Court while considering the matter of delay has observed as under:-

lt is a matter of common experience that in our country, people are quite hesitant in reporting such offences to the Police in majority of cases primarily to save honour of the family and the prosecutrix and in small number of cases as and when these cases are reported to the Police, they do so after considerable hesitation and long deliberations. In this view of the matter often there is delay in lodging the FIR. The prosecution version cannot be thrown out only on the ground of delay in lodging the first information report, otherwise in some cases it may lead to serious miscarriage of justice.

In the case of State of Rajasthan Vs. Om Prakash, it has been held that there should be proper explanation of inordinate delay. In this case, there was delay of 26 hours in lodging of first information report fully explained by the prosecution, therefore, it has been observed as under :-

As regards the contention regarding the delay in lodging the FIR, the real question is about the explanation for the delay. It is not at all unnatural for the family members to await the arrival of the elders in the family when an offence of this nature is committed before taking a decision to lodge a report with the police. The reputation and prestige of the family and the career and life of a young child is involved in such cases.

In the case of Harpal Singh and Another Vs. State of Himachal Pradesh, , in which the occurrence according to the prosecutrix took place in the night intervening 20th and 21st August 1972, the first information report was lodged on 31st August 1972 and the complainant had given reasonable explanation for lodging it after ten days of the occurrence stating that as honour of the family was involved, the family members had to decide whether to take the matter to the Court or not. The Hon''ble Apex Court in that case observed that it is not uncommon that such considerations delay the action on the part of the near relations of a young girl who is raped.

After carefully examining the principles laid down by the Hon''ble Apex Court and various High Courts, now I propose to examine the evidence led in the case by the prosecution.

In the present matter, PW5 Mst. Badami is the prosecutrix. In her statement in the Court, she has deposed that 14-15 months before recording of her statement in the Court, she had gone to her Bua''s village and after staying for two days there on the third day she started on foot for her village and while she was on the way in the Bid, Birdha and Moda came in front of her and stopped her forcibly. Her hands were tightened with the turban of Moda accused and liquor was poured into her mouth. Moda took out a knife and she was made to lie on the earth. The accused lifted her petticoat upwards and one after another inserted their penis into her vagina. She has stated further that she resisted and as a result of that her bangles broke and fell down on the earth. The accused did not leave her there but took her upto the turn of village Katunda at a liquor shop and by that time it had become dark. At that place (Daru ki Gumati), Basantiya (since expired) committed rape on her and went outside. Thereafter, 2-4 persons came one after another and committed rape on her and after wiping out the white discharge coming out from her vagina left her outside in semi-conscious condition. She has correctly identified the accused persons in the Court. She has further stated that in the early morning she started for her village and on the way near Katunda village turn Chittar met her and she narrated the entire incident to him, who managed for her going to the village sitting in the truck of one Parbat Singh and could reach her village Madana. On reaching home, she found that her father and mother had gone to village Moraka Kheda and her uncle Chatra had gone out of village, who came after three days and on his arrival the entire story was narrated to him. She alongwith her uncle PW3 Chatra went to police station and lodged the first information report which was got written by one Ramesh and the police thereafter inspected the two places where the rape was committed on her, prepared memos and recovered pieces of bangles from the spot so also two small pieces of dirty clothes. She has proved memos Ex.P/6, Ex.P/7, Ex.P/8 and P/9 and further stated that she was medically examined by the doctor and she had shown her injury to the doctor. She further stated that identification parade was held in the Sub-Jail, Begu in the presence of Magistrate and she was asked to identify the persons who had committed rape and she has identified accused Kana, Chunnilal, Nainsukh and Sawailal. In the cross-examination, the prosecutrix has stated that she did not know the names of the accused prior to the incident however, accused Barda and Moda were known to her from before. She has accepted the suggestion that Moda and Barda committed rape on her in Bada and not in the Gumti. She has denied the suggestion that as her sister''s engagement was cancelled she involved the accused Barda and Moda in the case.

PW2 Dr. S.S.Das examined Mst. Badami - the prosecutrix, on a police requisition on 3.5.1985 while he was posted as Medical Officer, Govt. Hospital, Begu. He found the following injuries on the person Of the prosecutrix.

Abrasion 2 cm x 0.5 cm - on the medial surface of the left writs joint.

Abrasion 1.5 cm x 0.2 cm - on the middle of the back of the chest.

Abrasion 10 cm x 2.5 cm - on the middle of the lateral surface of the right thigh.

Abrasion 12 cm x 3 cm - on the middle of the lateral surface of the left thigh.

In his statement the doctor stated that at the time of examination the condition of clitoris, libia majora and minora was normal and there was fresh vaginal discharge round about the vagina. According to him there were no signs of tearing hymen fresh or old and the orifice of hymen was of 2 cm. width which was of dark red colour with complain of pain. He also stated that prosecutrix''s vagina allowed passing of two fingers with little discomfort. The witness was further stated that the abrasions found were of dark brown colour with scab formation on the injuries which could peel off within one or two days. The injuries were about 7 days old and during this period the rape might have committed with her. During his cross examination the doctor stated that the injuries could not be result of one time consented intercourse and it is also not necessary to suffer injuries on libia majora and minora even if 6-7 persons commit rape but even after giving local anesthesia there was pain in the hymen of the prosecutrix and other conditions which he found, led him to come to the conclusion that the prosecutrix was raped.

PW3 Chatarbhuj is the uncle of prosecutrix. He has stated that before coming to know of the incident he was out of village on his duty and had come to village only after 3-4 days when the prosecutrix narrated to him the entire incident which happened with her and told that she was raped by Moda and Birda and thereafter by seven persons near the Katunda village turn in the house of a Thakur. He has further stated that he took Mst. Badami to the police station and the first information report, which was got written by one Ramesh, was lodged in the Police Station, Begu, the police inspected the site and recovered pieces of bangles and also prepared recovery memos, site plans etc. The witness has proved the memos in this connection and the first information report. In the cross-examination, he has stated that the fact that rape was committed 4 days before lodging of the FIR was disclosed at the police station and the report was read over to him. He stated that at the time when the report was being written by Ramesh, it was Mst. Badami who narrated the incident to Ramesh. It was further stated that he did not at all knew the names of the persons who committed rape with her but it was she who had disclosed the names.

The other witnesses PW1 Sualal, PW6 Bherulal and PW9 Chhitar have been declared hostile. PW1 and PW6 are the witnesses for Fards, PW9 Chhittar is the witness to whom prosecutrix met after the rape was committed on her and who made the arrangement for her returning home in a truck of Parbat Singh. PW7 is Roop Kishore, who at the relevant time was ASI in the Police Station, Begu with whom the report Ex.P/4 was lodged by Chaturbhuj alongwith Mst. Badami. This witness has stated that after registering the case investigation was conducted by him and he seized the clothes. He also found two dirty clothes from the second place of incident and seized them. The explanation offered by him for not sending the dirty clothes to FSL was that the investigation was transferred from him. PW8 Netrapal Singh, SHO has also conducted the investigation in the matter and has recorded the statements of the witnesses. He also arrested some of the accused persons.

In defence, three witnesses namely Pyara (DW1), Abhya Kumar (DW2) and Gopilal (DW3) have been examined. DW Pyara in his statement has stated that the accused persons have been implicated due to the cancellation of the engagement Chatarbhuj''s son with the Moda''s daughter however in cross-examination he has stated that he was not there at the time of cancellation of the marriage but had only heard about the cancellation. The other two defence witnesses DW2 Abhay Kumar and DW3 have been examined in support of the plea of alibi taken by accused Basantilal.

I have carefully scrutinized the evidence led by the prosecution.

The first contention of the learned counsel for the appellants was that the FIR was lodged after a lapse of 4 days without there being any reasonable explanation, therefore, the entire case of the prosecution deserves to be thrown out. I do not find any merit in this contention of the learned counsel for the simple reason that after the incident when prosecutrix reached at home, there was no male member. She waited for the arrival of male member and when her uncle PW3 Chaturbhuj returned from job, the entire incident was narrated to him and thereafter a report was lodged in the police station. So far as the further contention of the learned counsel that she did not disclose the incident which happened to anybody, it may be stated that in such matters it cannot be expected from a victim of rape to act normally who would not like to give publicity to the experience she had undergone rather would avoid talking to anybody. There may be other facts also for her not disclosing the incident to others may be such as hesitation, shame, fear and shock etc. and that cannot be a reason to disbelieve her testimony simply on the ground that she did not narrate the incident to others. In such matters, it is the confidence and faith of the victim in the person to whom she is going to disclose the incident. If the prosecutrix did not disclose the incident to her aunt, then also it cannot be presumed that the incident as stated had not taken place with her. It is unbelievable that in the Indian society a girl without caring for family reputation and honour will attribute the allegation of rape just for minor differences. The allegation of rape by a girl is of serious nature and unless it is brought on record that on account of enmity which was of such a nature that allegation of rape could be attributed, in my humble opinion, simply stating that there was some enmity, the testimony of prosecutrix cannot be brushed aside. The law which has developed on the point is that the evidence of the prosecutrix is to be scrutinized cautiously and if inspires confidence, conviction can be based on it. In the instant case, the suggestions were put in the cross-examination to the witnesses regarding cancellation of the engagements between the parties. In my opinion, this cannot be a reason to believe that on account of cancellation of engagement, such an allegation like of committing rape will be hurled out without caring the reputation Of the family in the society. It shall be worthwhile to mention here that the prosecutrix is a married lady. No married lady in the Indian Society would be so courageous to attribute allegations of rape which involves her reputation and also the risk of her marriage being broken on this count.

The authorities referred to herein above clearly indicates that in such matters where rape has been committed and proper explanation is offered for the delay caused in lodging the first information report, the requirement is to examine the matter cautiously and carefully taking into consideration the circumstances in which the incident has taken place and not to throw the case on the count of delay. Thus I do not find any merit in the contention of the learned counsel for accused appellants that there is no proper explanation for the delay in the present matter.

The another contention of learned counsel for accused-appellants was that there are material contradictions in the evidence of prosecutrix and the evidence of the prosecutrix if examined in the light of medical evidence it cannot be said that she was subjected to rape. I do not find substance in this submission of the learned counsel for the reason that prosecutrix PW5 Mst. Badami in her statement indicated that forcibly at two places rape was committed by the accused appellants. Nothing has come on record except a suggestion in the cross-examination addressed in this regard that she had illicit relations with Moda and Birda. Even otherwise, the statement of PW2 Dr. S.S.Gupta is clearly indicative of the fact that within 7 days of examination the prosecutrix was subjected to rape. Dr. Gupta has explained that in cases of rape it is not essential that hymen should be ruptured. The doctor found four injuries on the person of prosecutrix and according to his report there was pain in the private parts of prosecutrix and he was of the opinion that rape was committed without the consent of the prosecutrix. A book by Dr. R.L.Gupta viz. The Medico Legal Aspects of Sexual Offences'' (11 Edition) at page 77 which has made a reference to Modi''s Jurisprudence (20th Edn. 337), states that in case when the hymen is intact and not lacerated, it is necessary to note the extensibility of the vaginal orifice, the possibility of sexual intercourse having taken place without rupturing the hymen may be inferred if the vaginal orifice is big enough to admit easily the passage of two fingers. In the present matter in view of the evidence of the prosecutrix and the statement of PW2 Dr. S.S.Das, coupled with reference to Modi''s Jurisprudence the only inference which can be drawn is that the prosecutrix was subjected to rape and that her evidence is worth reliance.

The further contention of the learned Counsel was that in the present case the Magistrate, who conducted the identification parade in Sub-Jail, Begu, has not been examined. In this connection, a perusal of the record reveals that the Magistrate who conducted the identification parade was summoned many a times but his presence could not be secured for one or the other reason. However, the memo prepared regarding identification of accused persons in presence of the Magistrate has been placed on record as Ex.P/25 and that has not been challenged in the cross-examination. The prosecutrix in her cross-examination in reply to a question put to her stated that she had disclosed the four accused persons in the identification parade who had committed rape with her and in such circumstances, the document prepared regarding identification parade having been admitted without any objection, the argument raised in this behalf has no substance.

Another argument that was raised by the learned Counsel was that because of darkness it was not possible for the prosecutrix to have identified the persons who had committed rape with her. In this regard, a perusal of the statement of the prosecutrix clearly goes to show that she has stated that at the place where rape was committed moon-light was there and the gate of Ghumti was open. It is also unbelievable that a victim against whose wishes intercourse has taken place will ever forget the face of the person who had committed rape on her. The contention is untenable.

It was also contended by the learned counsel that no description in the first information report has been given about the persons who had committed rape. It is correct that no description of the accused persons was given in the first information report but at the same time no question has been put in this regard to the witness. The contention of the learned counsel that as some of the accused persons were known to the prosecutrix prior to the incident and the other accused who were identified by her were in the near relations of other accused persons, therefore, it should be inferred that they have subsequently been falsely involved in the case, has no merit. As discussed above, for the reason that there was moonlight and the door was open, the possibility to see the faces of the persons who committed rape was there. The argument that non-mentioning of the names in the first information report should be a reason to disbelieve the testimony of prosecutrix, if appreciated, the only thing which emerges out is that the accused persons were earlier known to the prosecutrix or his uncle but not named in the FIR. Had the prosecutrix or his uncle had known the names of accused persons earlier then there was no reason to name them in the report. Nothing has been suggested as to what they were going to gain by withholding their names. Even otherwise, mere non-mentioning of the names of accused persons in the first report is not sufficient to discard the testimony of the prosecutrix. In this view of the matter, taking into consideration the statement of the prosecutrix, which has not been shaken in the cross-examination, she cannot be disbelieved on the point that there was no possibility to have identified the accused persons at the time of incident because of darkness.

The further contention that on account of faulty investigation the entire case of the prosecution should fall down is also not sustainable for the reason that in such cases on account of faulty investigation the testimony of the prosecutrix if otherwise inspires confidence is not required to be thrown out. It is correct that in the present case investigation has not been conducted in a proper manner as the two dirty clothes used in wiping out the white discharge and other seized articles were not sent for examination to the FSL but that itself would not be sufficient to discard the testimony of the prosecutrix. In the case of Sheikh Jakir vs. State of Bihar, 1983 CrLR 413 (SC), the Hon''ble Supreme Court has held that the conduct of the prosecutrix in washing the clothes worn by her at the time of incident was not sufficient to discard his testimony.

It was also contended that when prosecutrix was first raped in the ''Bid'' of village Katunda and subsequently in the Gumti near the turn of village Katunda, she did not make any cry, therefore, this conduct is suggestive of the fact that either nothing has happened with the prosecutrix or even if something has happened then that was with her consent. I do not find any merit in this contention also for the reason that no question was put to the witness in this regard and further for the reason that in such a gang rape the mental condition of the victim can easily be inferred. The other contention of learned counsel that as per the version of the prosecutrix herself that she was forcibly made to consume liquor, after consuming liquor it was not possible for her to have remembered the faces of the accused is also meritless because what she has stated in her statement is that accused Moda and Birda had poured liquor in her mouth. In my opinion, she might have exaggerated the fact of pouring half bottle of liquor into her mouth but it cannot be a reason to believe that in an intoxication state she would not recognize the faces of persons who committed rape.

In view of above discussion, there appears to be no merit in the contentions of the learned counsel for the accused-appellants.

After carefully examining the evidence led by the prosecution and particularly the statement of prosecutrix, I have come to the conclusion that the statement wherein the prosecutrix alleges that she was raped by accused Moda and Birda at the first instance and thereafter by other accused persons, who were later identified by her, is worth reliance, some minor discrepancies and omissions suggested by the teamed counsel for accused-appellants are of no significance and the evidence of the prosecution inspires confidence. The defence evidence led by the accused appellants, as discussed above, is also of no consequence as the same is not worth reliance.

In view of foregoing discussions, I do not find any merit in the present appeals filed by accused appellants.

In the result, S.B.Criminal Appeal No. 103/1987 (Sawailal & Anr. vs. State) and S.B.Criminal Appeal No. 117/1987 (Barda & Anr. vs. State) are dismissed after confirming the conviction and sentence awarded to the accused appellants by the learned trial Judge in sessions Case No. 22/85 dated 13.3.1987. The appeal filed by appellants Basanti Lal s/o Magan Lal, Chunni Lal s/o Bhoja and Nain Sukh s/o Hardeo stands abated in view of the order of this Court dated 4.11.2004 as they have expired during the pendency of S.B. Criminal Appeal No. 103/1987. The accused appellants are on bail. Their bail bonds stand cancelled. The learned trial Court is directed to take steps for arresting the accused persons to serve out the remaining sentences awarded to them.