CHHANGANI, J.—These seven appeals are directed against the judgment and order of the Additional Sessions Judge No. 1, Jodhpur, dated 23rd of Dec, 1965. In Sessions Case No. 16 of 1965, 31 of 1965 the Additional Sessions Judge tried the seven appellants for offences under section 376, 342 and 323, Indian Penal Code. After trial, he found them all guilty and convicted them and awarded sentences as detailed below :— Gopi Shanker u/s 376 IPC 5 years R.I. & fine of Rs. 500/-; in default, one years R.I. u/s 342323r/w 34 6 months R I & fine of Rs. 50/-; in default, two months R.I. on each count. Mahesh ChandShiv KumarDhan SinghSher Singh u/s 376 5 years R.I. & fine of Rs. 100/-; in default, six months R.I. Tulsi Ramu,Ramchander u/s 342323r/w 34 6 months R.I. & fine of Rs. 50/-; in default, two months R.I. on each count. All the sentences to run concurrently. 2. Each of the seven convicts has filed a separate appeal challenging his convictions and sentences and these appeals are being disposed of together. 3. The facts on which the prosectuion is founded may be briefly stated as follows: — Mst. Draupdi, the prosecutrix, PW/1, was married with Arjun PW/2 in or about the year 1962 in Jodhpur. Mst. Draupdis parents resided during the relevant period in a house in Mohalla Navchowki, Jodhpur, whereas, her husband resided at Mahamandir. Two months before the incident which occurred in the night between 3rd and 4th of June, 1965, and which has led to the present prosecution of the appellants, Mst. Draupdi gave birth to a child at her fathers house and was residing with her parents upto the date of the occurrence. The presecu-tion case further is that on 3rd June, 1965, Arjun took Mst. Draupdi from her parents house at about 5.30 p.m. and left for the market for purchasing some cloth for himself and for Mst. Draupdi. They left the child in the care of Mst. Draupdis mother. They arrived at Sojati Gate. While Mst. Draupdi remained outside Arjun went into Prakash Silk Store. He, however, found great rush of customers in the Prakash Silk Store, and therefore, postponed the purchase of cloth and came out of the shop. At that time Gopal PW/5 is alleged to have met Arjun and Mst. Draupdi by chance. Gopal proposed to Arjun and Mst. While Mst. Draupdi remained outside Arjun went into Prakash Silk Store. He, however, found great rush of customers in the Prakash Silk Store, and therefore, postponed the purchase of cloth and came out of the shop. At that time Gopal PW/5 is alleged to have met Arjun and Mst. Draupdi by chance. Gopal proposed to Arjun and Mst. Draupdi that they should visit the Olympic Cinema House to see a picture and Arjun and Mst. Draupdi agreed. All the three of them thereafter went to Olympic Cinema. After the show was over they again came to Sojati Gate. Ordinarily, Arjun and Mst. Draupdi could have availed of the direct route from Olympic Cinema to Navchowki Mohalla but at the suggestion of Gopal they adopted a route via Sojati Gate in order to provide further company to Gopal. When they arrived just outside Sojati Gate Gopal further suggested to Arjun and Mst. Draupdi to have tea at Agra Hotel. The suggestion having been accepted, all the three entered the Agra Hotel at about 10-30 p.m. The prosecution case further is that in the Agra Hotel Hall there was a rush of customers and it was suggested to Gopal, Arjun and Mst, Draupdi (either by Gopi Shanker as stated in the first information report or by Mamma alias Maheshchand as put forward during the course of trial) that they should go up-stairs in the family Cabin. Arjun, Gopal and Mst. Draupdi went to the family cabin and occupied some chairs near the family cabin. It may be pointed out incidentally at this state that initially in the first information report it was stated that they went into the family cabin and stayed there. Ignoring this discrepancy the prosecution story further is that the prosecutrix. Gopal and Arjun waited for tea for ten to fifteen minutes and then Gopal went down-stairs to enquire and on returning reported that they would be having their tea very shortly. Even thereafter tea could not be served to them for quite a long time. They, thereafter, got up to go down but were asked either by Gopi Shanker or Mahesh (here again the prosecution is not quite consistent) to wait for some time. Even thereafter no tea was served but Gopi Shanker and Mahesh arrived at the family cabin with bottles of wine and soda. They also had with them four empty glasses. They, thereafter, got up to go down but were asked either by Gopi Shanker or Mahesh (here again the prosecution is not quite consistent) to wait for some time. Even thereafter no tea was served but Gopi Shanker and Mahesh arrived at the family cabin with bottles of wine and soda. They also had with them four empty glasses. Gopi Shanker and Mahesh stayed with them and offered drinks to Arjun and Gopal. After some initial hesitation they accepted the offer. According to the prosecution, each of the four persons, namely, Gopal, Arjun, Gopi Shankar and Mahesh took about one and a half glass of wine. The prosecution case further is that Arjun and Gopal felt some intoxication and were then sent down. Mst. Draupdi, however, was not permitted to go down by Gopi Shanker. Gopi Shanker thereafter forcibly took off the salwar, kurta and bodice which Mst. Draupdi was putting on at the time and made her completely naked and then had forcible sexual intercourse with her without her consent. After the first act of forcible sexual intercourse Gopi Shanker had further drinks and had forcible sexual intercourse with her for the second time. He then called Mahesh. Mahesh also had forcible sexual intercourse with Mst. Draupdi. Then followed Shiv Kumar Suri, Dhansingh and Manak, who is alleged to be absconding, and Sher Singh, Tulsi and Ramchander. The prosecution case is that each one of them had forcible sexual intercourse with Mst. Draupdi against her will and without her consent. It may be stated at this stage that Gyanendra Kumar PW/4 has his house just adjacent to the premises of the Agra Hotel. He could hear the noise that was caused in the Hotel in connection with the commission of the alleged rape by the accused appellants. For the first time he heard some noise in the Hotel and the cry of a woman at about 12 night. On enquiry he was informed either by Gopi Shanker that there was no woman there and that noise was caused because the servants had started taking their meals. He again heard noise after about an hour and further intervened and was told by Mahesh that the servants had been mono acting. The witness heard the noise a third time at about 3 A.M. He had also heard the sound of a woman. He again intervened and was offered the same explanation. He again heard noise after about an hour and further intervened and was told by Mahesh that the servants had been mono acting. The witness heard the noise a third time at about 3 A.M. He had also heard the sound of a woman. He again intervened and was offered the same explanation. He was, however, not satisfied with the explanation and gave a threat that he would inform the police. Upon this, Shiv Kumar and Mamma brought Mst. Draupdi in a naked condition from the side of the cabin. She was pushed by Gopi Shanker and was taken down in the hall. Gyanendra Kumar also heard some noise in the Hotel below. He thereupon went down and got out of his house and contacted Mangla Ram of the Sojati Gate Police Outpost. They came in front of the hotel and Satya Naraina and some other persons also arrived there. When they were there in front of the Hotel Mst. Draupdi was pushed down the stair case of the Agra Hotel in a naked condition and fell on the road in that condition. Gopal and Arjun were also similarly thrown down the stair case from the Agra hotel. Reverting to the prosecution story, it may be stated that after Arjun and Gopal had drinks they were brought down from the second story or the terrace whatever it may be called, to the hotel, they were taken to the kitchen and kept wrongfully confined there. Their hands had been tied with some cloth and their mouths were also gagged or closed. They remained in that condition till about 3 A.M. Then they were brought to the hotel room. Simultaneously Mst. Draupdi was also brought from the family cabin to the hall in a naked condition. Mst. Draupdi had been insisting for the supply of clothes to her but the accused did not care to supply her the clothes. When Gopal and Arjun saw Mst. Draupdi in that condition they got annoyed and they began abusing Gopi Shanker and the other accused. The employees of the hotel did not care to supply the clothes to Mst. Draupdi but on the other hand they started beating Arjun and Gopal. Gopal made an attempt to make a telephonic call to the police but Gopi Shanker asked Mahesh to out off the wire whereupon Mahesh cut off the wire and the telephone apparatus was disconnected. The employees of the hotel did not care to supply the clothes to Mst. Draupdi but on the other hand they started beating Arjun and Gopal. Gopal made an attempt to make a telephonic call to the police but Gopi Shanker asked Mahesh to out off the wire whereupon Mahesh cut off the wire and the telephone apparatus was disconnected. In the struggle in the hotel tables and chairs were upturned and were broken. Gopal and Arjun received injuries. After this beating Mst. Draupdi, Arjun and Gopal were thrown down the stair case as stated earlier. When the clothes of Mst. Draupdi were thrown from the window of the hotel, Manglaram picked them up and gave them to Mst. Draupdi. Mst. Draupdi put on the clothes. She also told Gopal, Arjun, Gyanendra Kumar, Manglaram and others what had happened with her in the hotel. Thereafter, the six persons, namely, Mst. Draupdi, Arjun, Gopal, constable Manglaram, Gyanendra Kumar and Satya Narain went to Police Station, Udaimandir, and a verbal report was made there. Mahmud Khan P W/16 recorded the first information report which is Ex. P/l. It was got signed by all the six persons. It is stated that Mahmud khan telephonically instructed the Officer incharge of the Police Out Post, Sojati Gate, to go to the hotel and arrest the miscreants. He also sent a few constables from the Police Station. He also telephonically called the Circle Inspector Parath Singh P W/17 who was the Station House Officer-in-charge of the Police Station, Udaimandir. After the arrival of Parath Singh investigation was taken over by him and he and Mahmud Khan with some constables left for the hotel. When they were just near the hotel they saw Mangla Ram arresting Gopi Shanker. Gopi Shanker after arrest by Mangla Ram was kept in a Baparda condition and was eventually produced before Mahmud Khan. An arrest memo was prepared which is Ex. P/29 and he was directed to keep himself Baparda. Parth Singh thereafter inspected the site, prepared the site memo Ex.P/2 and the site plan Ex.P/4. He found tables and chairs up-turned in the hotel. He also saw pieces of glasses lying there. The wire of the telephone was lying out off. On the roof near the family cabin he found broken pieces of glasses, signs of blood and drops of blood near the fourth cabin. He found tables and chairs up-turned in the hotel. He also saw pieces of glasses lying there. The wire of the telephone was lying out off. On the roof near the family cabin he found broken pieces of glasses, signs of blood and drops of blood near the fourth cabin. He also found soda bottles, two bottles like that of bear, one small bottle in which there were some drops of wine and glasses. He also found two chairs lying near the family cabin. Two pieces of cloth like handkerchief were also noticed there and were suspected of being stained. He seized various articles including the telephone receiver and took them into his custody and prepared the recovery memo. The articles seized were sealed and they are articles 1 to 16 and Arts. 20-A and 21. Mst. Draupdi, Arjun and Gopal were thereafter taken to the Mahatma Gandhi Hospital and they were examined by Dr. Har Govind P.W/9- Dr. Har Govind noticed the following injuries on the genitals of Mst. Draupdi— "Mucoid vaginal discharge; labia majora slightly swollen; labia minora sub-mucus echymosis irregularly spread on both sides; vaginal wall tender markedly; vagina lax; and entire vaginal wall showed area of sub mucus echymosis." Dr. Har Govind also noticed the following eight injuries on her person— (1) Contusion 31/2" x 3" area over both the thighs medially upper 4th. (2) Swelling with faint contusion on sacral area 4" diameter. (3) Abrasion 1-1/2" x 3/4 on the left elbow medially. (4) Abrasions irregular in 1" x 1" area right fore arm upper 4" (5) Abrasion l" x 1/2" with swelling above left eye brow. (6) Abrasion 1" x 1-1/10" below supra sternal notch. (7) Tenderness over left mid chest anteriorly. (8) Swelling over left lower jaw mid part. Dr. Har Govind also examined Mst. Draupdi to ascertain her age and expressed the opinion that the girl was about seventeen years. From his examination of Mst. Draupi he recorded an opinion that Mst. Draupdi had recent sexual intercourse, several times, qualifying the words "Several times" as more than one to two times. Dr. Har Govind also examined Gopal and noticed the following injuries— (1) Contusion 1-1/2" x 1/2" on left lower costal region posteriorly. (2) Contusion 3/4 x 3/4" below injury No. 1. (3) Tenderness over left upper chest anteriorly. Dr. Draupdi had recent sexual intercourse, several times, qualifying the words "Several times" as more than one to two times. Dr. Har Govind also examined Gopal and noticed the following injuries— (1) Contusion 1-1/2" x 1/2" on left lower costal region posteriorly. (2) Contusion 3/4 x 3/4" below injury No. 1. (3) Tenderness over left upper chest anteriorly. Dr. Har Govind examined Arjun also and found the following injuries on his person— (1) Abrasion l"x3/4" on the left wrist medialy. (2) He was complaining of pain over front of chest upper part. (3) Contusion two 1-1/2"1" and 3/4"x1/2" with abrasion over left arm lower 4th posteriorly. After the medical examination Mst. Draupdi, Arjun and Gopal went to Mst. Draupdis fathers house and there Mst. Draupdi changed her clothes and the clothes which she had at the time of the incident, namely, salwar and kurta, were taken into coustody by the police and were duly sealed. Clothes of Gopal and Arjun were also taken into coustody. During investigation other accused, namely, Mamma alias Mahesh Chand, Shiv Kumar Suri, Dhan Singh, Sher Singh and Tulsi were arrested. Manak could not be arrested and is still at large. During investigation the underwear of Gopi Shanker having been suspected of containing stains was recovered on information given by him. Similar recoveries were also effected including one payzama of Shiv Kumar Suri. 4. After completing investigation the police submitted charge sheet against all the seven persons in the court of Additional Munsif Magistrate No. 2, Jodhpur City, who after enquiry, committed the accused to stand their trial before the court of Sessions. The case was tried by the Additional Sessions Judge No.l, Jodhpur. 5. The accused did not plead guilty and claimed trial. 6. The prosecution examined 17 witnesses to prove its case, the prosecutrix Mst. Draupdi being PW/1. 7. The accused denied having committed any offence. Gopi Shanker stated that at about 10 p.m. when he was leaving the hotel for his home he saw Arjun, Gopal, Mst. Draupdi, and Gyan Prasad entering the hotel in an intoxicated condition. He went to his house and remained there. He had sexual intercourse with his wife and at that time had the underwear which had subsequently been seized by the police. He was called to the Police Station through a constable at about 7 A.M. and was arrested. Draupdi, and Gyan Prasad entering the hotel in an intoxicated condition. He went to his house and remained there. He had sexual intercourse with his wife and at that time had the underwear which had subsequently been seized by the police. He was called to the Police Station through a constable at about 7 A.M. and was arrested. He suggested that he had been falsely implicated on account of some conspiracy hatched by the Sindhi community. He has led defence evidence to suggest that Mst. Draupdi and Arjun were seen in suspicious circumstances outside Sojati Gate by some police constables. The police constables suspecting them to be vagrant asked them to accompany them to the Police Outpost but Arjun offered resistance. On that occasion Arjun and Mst. Draupdi wanted to go away on a cycle but were given a chase and they fell down and were injured. 8 Mahesh Chands version, however, is that he was at the hotel upto 11 p.m. That Mst. Draupdi, Arjun and Gopal had arrived in the hotel between 10 and 10/30 p.m. and when he left the hotel by 11 p.m. he had left behind Gopi Shanker and Mst. Draupdi, Arjun and Gopal and one servant Manak. 9. The other accused denied their presence at the hotel at the time of the alleged incident. It has, however, been suggested that after Gopal, Arjun and Mst. Draupdi and other persons were taken to the police they were beaten up and asked to falsely implicate the accused Gopi Shanker and others so that the police as well as the prosecutrix might be able to make some money. The various accused examined in all ten witnesses. 10. The Additional Sessions Judge framed the following four points for determination :— (1) Whether the accused persons committed rape on Mst. Draupdi? (2) Whether the accused persons wrongfully confined Arjun, Gopal and Mst. Draupdi? (3) Whether the accused persons beat Arjun and Gopal? (4) What punishment, if any, should be awarded to the accused persons? 11. Dealing with point No. 1, the learned Additional Sessions Judge considered the various links in the prosecution case separately and arrived at the following conclusions — (1) Reaching of these three namely, Gopal, Arjun and Mst. Draupdi, in the Agra Hotel in the night after the cinema show is fully established. This fact also finds support from some of the statements of the accused. Draupdi, in the Agra Hotel in the night after the cinema show is fully established. This fact also finds support from some of the statements of the accused. (2) The Additional Sessions Judge also found no difficulty in holding that Gopi Shanker and Mahesh came to the family cabin with wine, soda and glasses and that Gopi Shanker, Mahesh, Arjun and Gopal had drinks there. In arriving at this conclusion he relied upon the statement of Mst. Draupdi, Arjun and Gopal and the evidence of Parth Singh P/W17 who found soda bottles, wine bottles and glasses lying there at the time of site inspection. (3) The learned Judge after referring to the statement of Mst. Draupdi and the corroborative evidence recorded the following conclusions : "Having so much corroboration on these points, the statement of Mst. Draupdi about her being subjected to sexual intercourse on 9 occasions inspires confidence and there is no reason to disbelieve her on this point." He also found corroboration from the subsequent statements made by Mst. Draupdi to Arjun, Gopal, Gyanendra Kumar and Manglaram. The statement of Dr. Har Govind was also relied upon for the conclusion that she was subjected to sexual intercourse several times. Taking up the question whether all or any of the accused had sexual intercourse without consent the learned Additional Sessions Judge discussed in details the case of Gopi Shanker and observed — "She was so dazed and almost in a sort of a trance that she could not even make a loud cry and hardly any power was left in her to put up a struggle or a resistance; and for all purposes on account of fear and the effect of wine and the suddenness of the situation she was made to submit herself to the inevitable satisfaction of lust of Gopi Shanker, who not being satisfied once had one more go at her. The circumstances, therefore, justify that she was made to submit her body under the influence of fear or terror and there was no consent." He then collectively took up the cases of the remaining six accused appellants and stated that "The story given by the girl about the rape committed on her by the accused persons is true and must be believed. "He further derived support for this conclusion from the medical evidence and the reports of the chemical analyser. "He further derived support for this conclusion from the medical evidence and the reports of the chemical analyser. The learned Judge thereafter dealt with various contentions made on behalf of the defence and negatived them. With these various findings, point No. 1 was decided in favour of the prosecution and against the accused and it was held that all accused persons committed rape on Mst. Draupdi and were guilty under sec. 376, I.P.C. 12. Dealing with point No. 2, the learned Judge was not prepared to hold positively that Gopal and Arjun were kept tied in the kitchen. All the same, the learned Judge held that Mst. Draupdi having been kept at the roof and Gopal and Arjun having not been permitted to go about and meet Mst. Draupdi the accused appellants were guilty under sec. 342, read with sec 34, Indian Penal Code. 13. Point No. 3 was also decided in favour of the prosecution and it was held that the accused appellants inflicted injuries upon Gopal and Arjun. 14. The learned Judge, under point No. 4 determined various punishments for the accused. 15. Aggrieved by their conviction and sentences each of the accused has filed a separate appeal. Gopi Shanker, Mahesh, Shiv Kumar and Tulsi have filed appeals through Shri Bhim Raj, Shri S. T. Porwal, Shri Sardul Singh and Shri Laxman Raj respectively. The three appellants Dhan Singh, Sher Singh and Ram Chander have filed appeals through Jail. 16. I have heard the learned counsel for the defence and Mr. Har Nath Calla for the State. The cases of Dhan Singh, Sher Singh and Ramchander were also examined with the assistance of the counsel for the defence and the counsel for the State. 17. Mr. Bhim Raj challenged the findings arrived at by the Additional Sessions Judge on a number of grounds. At the out set he contended that the investigation of the case has not been quite fair. It was pointed out that Arjun, Gopal, Mst. Draupdi, Manglaram and Staya Narain must have reached the Police Station at about 3.45 a.m. and yet the first information report was recorded at 4.45 a.m. This interval of one hour was utilised by those interested in the prosecution for deliberations and manipulations. According to him, there was no justification for the delay in recording the information. Draupdi, Manglaram and Staya Narain must have reached the Police Station at about 3.45 a.m. and yet the first information report was recorded at 4.45 a.m. This interval of one hour was utilised by those interested in the prosecution for deliberations and manipulations. According to him, there was no justification for the delay in recording the information. Proceeding further the learned counsel contended that the Police Officer who recorded the first information report got it signed by all the six persons, namely, Arjun, Gopal, Mst. Draupdi, Mangla Ram, Satya Narain and Gyanendra Kumar. According to him, this unusual step was taken by the police officer to pin down these six persons so that they may not be in a position to change their position at a later stage. The learned counsel also added that subsequently the Police Officer got the statements of all the persons including the prosecutrix, recorded under sec. 164 Criminal P. C. This was yet another attempt to secure commitment of the various witnesses. In this connection relying upon Emperor vs. Manu Chik(l) and Parmeshar Din vs. Emperor (2) he contended that an inference should be drawn that these witnesses were not considered reliable by the Police Officer and this circumstance should affect their reli-ablity for arriving at a proper conclusion in the present case. The learned counsel also commented on the act of the Investigating Officer in associating motbirs at the time of the site inspection. Some comments were also offered on the delay in the recovery of the clothes from the person of Mst. Draupdi as well as Gopi Shanker. According to him, the clothes of Mst. Draupdi and Gopi Shanker should have been taken into custody at the earliest possible opportunity and there was no justification for the leisurely manner in which the Police Officers effected recoveries. That the packet of the articles recovered and suspected to be stained with blood or seminal stains were not sent to the chemical examiner in time and were sent after a good deal of time, and further there is no evidence to show whether they remained untampered with. Further, there is no proof that the information of the crime was forwarded to the Magistrate in time and further diaries were despatched to the superior officers regularly and punctually. Further, there is no proof that the information of the crime was forwarded to the Magistrate in time and further diaries were despatched to the superior officers regularly and punctually. Lastly, Manglaram having denied that he arrested Gopi Shanker the arrest of Gopi Shanker by Manglaram has been wrongly shown by the Investigating Officer. On the basis of these irregularities or defects in connection with investigation the learned counsel contended that the prosecution case should be viewed with suspicion. Arguing the case on the evidence, the learned counsel pointed out various discrepancies in the first information report and the various statements made by Mst. Draupdi, namely, statement u/s. 164, Cr. P.G., statement at the committal stage and the statement at the trial. A number of such discrepancies were pointed out and it was further added that the witness denied to have made some of the statements u/s. 164 Cr. P.C or at the committal stage. He also invited my attention to the fact that at many places she imputed the part which was initially imputed to Gopi Shanker to Mahesh Chand. In view of these discrepancies the learned counsel initially went to the extent of contending that Mst. Draupdi should be treated as wholly unreliable witness and that the prosecution case be thrown down on that ground. It was added that the witness being wholly unreliable no corroboration could be available from her earlier statements and other circumstances, that the materials on record are quite insufficient to establish the commission of rape by the accused on Mst. Draupdi. Alternatively, the learned counsel contended that at any rate, the statement of Mst. Draupdi is atleast partially unreliable on this ground that the evidence of a prosecutrix in a rape case should as a matter of prudence be corroborated by other evidence to sustain conviction. The learned counsel insisted that corro-boration should be available before sustaining conviction. He submitted that there is no reliable and independent evidence which can provide corrobaration to the statement of Mst. Draupdi to establish the commission of the offence and to connect Gopi Shanker with the crime. Continuing his argument, he proceeded to state that even if Gopi Shankers presence at the hotel and his having had sexual intercourses with Mst. Draupdi be established there is no corroboration on the point that the sexual intercourse was without her consent. Draupdi to establish the commission of the offence and to connect Gopi Shanker with the crime. Continuing his argument, he proceeded to state that even if Gopi Shankers presence at the hotel and his having had sexual intercourses with Mst. Draupdi be established there is no corroboration on the point that the sexual intercourse was without her consent. On the other hand, the learned counsel relied upon the conduct of Arjun, Gopi and Mst. Draupdi and various other circumstances including the absence of active non-resistance for a. submission that the sexual intercourse, if any, cannot be proved to have been without her consent. 18. Arguing the case on behalf of Mahesh Chand alias Mamma, Mr. Porwal the learned counsel emphasised that Mst. Draupdi and other prosecution witnesses unjustifiably improved the case against Mamma alias Mahesh Chand by changing their version and imputing conduct to Mahesh Chand which was initially imputed to Gopi Shanker in the first information report. He also contended that Mahesh Chand did not take part in the wine party near the family cabin and relied upon the ommission of this fact in the first information report. The learned counsel also contended that Mst. Draupdi having given a detailed account in connection with the commission of rape by Gopi Shanker omitted to give any detail in connection with Mahesh Chand and other accused and argued that Mahesh Chand should not be held to have had any sexual intercourse with Mst. Draupdi. Alternatively., the learned counsel contended that even if Mahesh Chand had any sexual intercourse with Mst. Draupdi it was not without her consent. Reliance was placed in this connection upon the statement of Mst. Draupdi at the committal stage that she told nothing to Mesh Chand when he wanted to have sexual intercourse with her. The absence of marks of injuries on the person of Mahesh Chand and the absence of any blood or seminal stains on the clothes of Mahesh Chand were also relied upon by him. 19. Mr. Sardul Singh who appeared on behalf of Shiv Kumar Suri suggested "that on the facts of the case the entry by Arjun, Gopal and Mst. Draupdi into the hotel could not be treated as a mere chance visit but should be treated as a pre-planned intended visit. The learned counsel emphasised that Arjun and Mst. Draupdi left their house at 5/30 p.m. for purchasing cloth. Draupdi into the hotel could not be treated as a mere chance visit but should be treated as a pre-planned intended visit. The learned counsel emphasised that Arjun and Mst. Draupdi left their house at 5/30 p.m. for purchasing cloth. They did not purchase any cloth and then visited cinema house and after the cinema was over Mst. Draupdi and Arjun did not take direct and nearer route but arrived near the Agra Hotel and entered the hotel. This circumstance should throw a doubt on the prosecution story and consequently, the story should be rejected and no case should be held proved against the appellant Shiv Kumar Suri, Alternatively, the learned counsel contended that Shiv Kumar Suri has his shop near the Residency Road at a distance of about two miles from he Agra Hotel and the could not have been in the hotel to have sexual intercourse with Mst. Draupdi except with some preplanned arrangement under which he was brought to the hotel at that hour of the night. On these facts and various other circumstances, the learned counsel submitted that the sexual intercourse by Shiv Kumar Suri with Mst. Draupdi, if any, could not be without her consent. 20. Mr. Laxman Raj addressed me on behalf of Tulsi and contended that he could not be identified by Mst. Draupdi and the prosecutrix having not identified him at the parade the Additional Sessions Judge had no justification whatsoever to hold him liable for committing rape upon Mst. Draupdi. The learned counsel also contended that Tulsi is not an employee of the Agra Hotel but is an employee of the Agra Sweet Home which is a different establishment. The learned counsel also invited my attention to the fact that a register containing the attendance of the employees of the Agra Hotel was taken into custody by the police but the same has been withheld only because it did not contain the name of Tulsi as the employee of the Agra Hotel. He relied upon this fact for a contention that in these circumstances the chances of his presence in the Agra Hotel were nil. He relied upon this fact for a contention that in these circumstances the chances of his presence in the Agra Hotel were nil. He also contended that he had been identified only by Gopal in connection with the beating given to Gopal and Arjun in the Agra Hotel Hall and that this sole testimony of Gopal should not be held sufficient to sustain his conviction on the well accepted principles relating to the vakye if identifying witnesses. 21. Mr. Calla appearing for the State, could not support the judgment of the trial court in so far as it relates to the conviction of Sher Singh and Tulsi for an offence under sec. 376 I. P. C. These accused could not be identified by the prosecutrix at the time of the parade and there could be, therefore, no reliable evidence to sustain their conviction. He, however,contended that these two persons should be held liable as abetters in respect of the commission of the rape by the other accused. Dealing with the arguments of the counsel for the accused, Mr. Calla submitted that the irregularities in connection with the investigation of the case are of trivial nature and there was no intention on the part of the prosecution to pin down the prosecutrix and the witnesses. On the other hand, the prosecuting agency had apprehensions that the accused being influential and rich persons could win over the witnesses and it was only to safeguard against such a contingency that the statements of the witnesses were got recorded under sec. 164, Criminal P.C. With regard to the signatures of all the six persons on the first information report, the learned counsel pointed out that it was not a very material circumstance. It was alternatively contended that the irregularities in connection with the investigation should not be permitted to be affect the merits of the case after the evidence has been recorded during the course of the trial and has been appreciated by the Judge. The learned counsel also admitted that there were certain discrepancies and contradictions in the statement of Mst. Draupdi and other witnesses, but it was argued that such discrepancies are quite natural and are the result either of lapse of memory or incapacity to recite the story or the stress of cross-examination. The learned counsel contended that on the material facts Mst. Draupdi and other witnesses, but it was argued that such discrepancies are quite natural and are the result either of lapse of memory or incapacity to recite the story or the stress of cross-examination. The learned counsel contended that on the material facts Mst. Draupdi and other witnesses have been quite consistent and there is no reason to summarily reject the evidence either of Mst. Draupdi or other prosecution witnesses. The learned counsel further pointed out that the facts that Mst. Draupdi along with Arjun and Gopal went into the hotel at about 10/30 p.m , that they remained in the hotel till about 3/30 a.m. and that eventually Mst. Draupdi was thrown down the stair-case in a naked condition on the road and Arjun and Gopal were also subsequently thrown down the stair-case and that during the period they remained in the hotel Gopal, Arjun, Gopi Shanker and Mahesh Chand had drinks are abundantly proved by the evidence and circumstances of the case including in some respects the admission of the accused. In these circumstances, the further case of the prosecution that during that interval some of the accused had sexual intercourse with Mst. Draupdi can be held easily established. There could be in his opinion no purpose for keeping Mst. Draupdi at the hotel for such a long period except to have forcible sexual intercourse with her. The evidence of the Doctor Har Govind that Mst. Draupdi had sexual intercourse several times also lends support to the above conclusion. According to the learned counsel, the statement of the girl in this context that the appellant had sexual intercourse with her, has been correctly accepted by the Additional Sessions Judge and there is no case for interference with this finding. On the question of consent, the learned counsel pointed out that there was some resistance no doubt although there could be no active non-resistance. He, however, submitted that non resistance in the facts and the circumstances of the case cannot tantamount to consent. According to him, Mst. Draupdi faced a very critical situation. She initially was in the company of her husband Arjun, husbands friends Gopal, Mahesh and Gopi Shanker. These four persons had their drinks together. He, however, submitted that non resistance in the facts and the circumstances of the case cannot tantamount to consent. According to him, Mst. Draupdi faced a very critical situation. She initially was in the company of her husband Arjun, husbands friends Gopal, Mahesh and Gopi Shanker. These four persons had their drinks together. Arjun and Gopal had some effect of the intoxicants and they were sent down from the family cabin, and she remained alone in that family cabin with Gopi Shanker who was also intoxicated and whose eyes were red and who was hefty. She could reasonably entertain an impression about the help-less-ness of Arjun and Gopal and felt herself under a situation where she could not think of offering any active resistance. It was according to him, a case of complete resignation. Reliance was placed in this connection upon the decision in Arjun Ram Naurata Ram vs. The State(3). In these circumstances, absence of active resistance cannot be treated as tentamount to consent on behalf of Mst. Draupdi. 22. Examining the argument of Mr. Bhimraj based on the alleged irregularities, it is true that the Police Officer recording the first information report should not have obtained the signatures of persons other than Mst. Draupdi. He is also right when he says that the Police Officer should have seized the clothes of Mst. Draupdi immediately at any rate, in the Hospital after her medical examination and there was no justification for the change of the clothes and the seizure of the clothes till after the arrival of Mst. Draupdi and others at her fatherss house. There is also an element of force in the statement of Mr. Bhimraj that the packet of articles seized and suspected to be stained with blood or seminal fluid should have been sent immediately to the chemical analyser and there was no adequate justification for delaying the despatch till 26th of June, 1965. I do not quite approve of the manner in which the first information report was got signed by many persons as also of the delay in the seizure of the clothes of Mst. Draupdi and other persons as also the delay in the despatch of the articles to the chemical analyser. I may also add that such irregularities along with other facts and the circumstances may affect the prosecution case. Draupdi and other persons as also the delay in the despatch of the articles to the chemical analyser. I may also add that such irregularities along with other facts and the circumstances may affect the prosecution case. However, in the present case, I am unable to attach much importance to these irregularities of evidence recorded during the course of trial. The act of the police officer in obtaining the signatures of persons other than Mst. Draupdi even though irregular, need only warrant a proper and cautious consideration of the evidence of the other witnesses at the trial and with an eye to see whether the statements at trial had been made only on account of their having been pinned down to a particular version. As regards the delay in the recovery and seizure of the clothes of Mst. Draupdi Arjun and Gopal in general and Mst. Draupdi in particular also does not affect the case inasmuch as I am not inclined to entertain any suspicion that the clothes might have been changed or any tampering might have been done with regard to them. Similarly, delay in the despatch of the packets of clothes is an act of inefficiency and does not reflect any manipulation by the investigating agency. The submission in connection with the sending of information on to the Magistrate and of sending copies of diaries to superior officers also have not much significance in the facts and circumstances of this case. 23. Now, I take up the argument in connection with recording of the statements of all the important witnesses under sec. 164 Cr.P.C. The learned counsel in the first instance relied upon Emperor vs. Manu Chik (1). 23. Now, I take up the argument in connection with recording of the statements of all the important witnesses under sec. 164 Cr.P.C. The learned counsel in the first instance relied upon Emperor vs. Manu Chik (1). In that case Dhavle, J. relying upon Queen Empress vs. Jadubdas (4) stated as follows— "It was pointed out by Prinsep J. in the well known case in 27 Cal 295 that a statement of a witness obtained under this section always raises a suspicion that it has not been voluntarily made, and that the section was not intended to enable the police to obtain a statement from some person (in that case it was an incriminating statement) and as it were to put a seal on that statement by sending in that person to a Magistrate practically under custody, to be examined before the judicial inquiry or trial, and therefore compromised in his evidence when judicial proceedings are regularly taken." Emperor vs. Manu Chik (1) was considered by this Court in Sakhat Singh vs. The State (5). In that case it was argued that since the statements of some of the witnesses were recorded under Sec. 164, Criminal P.C. they should not be relied upon. The argument was repelled with these observations :— "It may be noted that 1938 Pat, 290 is based on Queen Empress vs. Jadub Das(I.L.R. 27 Cal. 295) and in both the cases witnesses had retracted their previous statements. On this ground, it was held in these case that the previous statements of those witnesses were not to be relied upon." The learned counsel, however, relied upon another portion in the judgment reading as follows :— "Why these witnesses should all have been examined under sec. 164 at a time when the investigation by the Sub-Inspector Ramdeal Prased was almost complete,if not to pin them down in the commitment and other proceedings to certain statements, does not appear." It is true that these observations taken in isolation may support the counsel for the defence but I must point out that the same learned Judge immediately after these observations proceeded to say that— "If the Sub-Inspector had any good reason for resorting to sec. 164 at this stage, it ought to have been looked into. 164 at this stage, it ought to have been looked into. The learned Judicial Commissioner has altogether failed to attend to this aspect of the matter." The observations of Dave J. in the circumstances should be considered limited to the facts of that particular case. 24. Parmeshar Din vs. Emperor (2) relied upon by the counsel does not lend much support as will appear from the relevant observations extracted below :— "We are not ourselves prepared unreservedly to endorse this view. No doubt the fact that the police have considered it necessary for the statement of a witness to be recorded under sec. 164 suggested that they do not consider him altogether a reliable witness that is to say they apprehend that he may be tampered with. But we can see no objection to the procedure being followed in appropriate cases, and we do not know with what other object this provision was made in sec. 164......We can see no objection in these circumstances to the police sending the witnesses to have their statement recorded by the Magistrate under sec. 164." In another Single Bench of this Court in Nisar vs. State of Rajasthan (6) Beri, J. referred to all these three cases as also Parmanand vs. Emperor (7) and summed up his conclusion a^s follow : — "Sec. 164 of the Code of Criminal Procedure is a safe-guard intended to preserve truth in the course of an investigation and before enquiry and trial. To convert this safe-guard as an argument to exclude the testimony of a witness whose version has been sought to be preserved will appear to defeat the object which the legislature intended to achieve." The question as to what should be the bearing and effect of the witness having been previously examined under sec. 164, Criminal P. C. on the appraisement of his evidence is a question primarily relating to the appraisement of the evidence and I cannot accept the wide proposition of the learned counsel for the appellants that the witness should be necessarily treated as unreliable on that ground. The resort to sec. 164 Criminal P. G. may be made by the investigating agency some times in order to prevent a powerful and rich accused from tampering with the prosecution witnesses or may be resorted by investigating officer as a matter of mechanical habit. The resort to sec. 164 Criminal P. G. may be made by the investigating agency some times in order to prevent a powerful and rich accused from tampering with the prosecution witnesses or may be resorted by investigating officer as a matter of mechanical habit. What inference should be drawn from the fact of the investigating officer having got the statement of the witness recorded under sec. 164 Criminal P. C. is a question of fact to be determined on the facts and the circumstances of individual cases and no hard and fast rule should be laid down in such cases. All that may be necessary is that this circumstance may be kept in view in appraising the evidence that is brought on record during the course of trial. 25. ... ... ... ... ... ... ... ... 26. Now, taking up the arguments of Mr. Bhim raj on the evidence, I must atonce state that the most important witness in the case is Mst. Draupdi PW/1. She is the prosecutrix. She in her trial statement has implicated all the seven appellants for having committed rape upon her. She has named all the seven appellants and has identified them. Although it may be significantly pointed out at this stage that at the prior parade she could identify only five persons, namely, Gopi Shanker, Mahesh, Shiv Kumar, Dhansingh and Ram Chand. She further makes bold to state in Court that she had identified all the seven accused at the prior parade. Her statement on this aspect of the case is thus discrepant and docs not appear to be correct prima-facie. Further, in her trial statement she made a few departures from the version given in the first information report. In the first information report she had stated that when she along with Gopal and Arjun entered the Agra Hotel when the proprietor of the hotel, who was called as "Seth Gopi Shanker", asked them to go and wait in the family cabin. She had further stated that when after unsuccessfully waiting for tea for about an hour they pro-ceeded to go Gopi Shanker asked them to wait and told them that tea would be served shortly. At the trial stage, she clearly stated that it was not Gopi Shanker but Mamma alias Mahesh who asked them to go to the family cabin and to wait for tea. At the trial stage, she clearly stated that it was not Gopi Shanker but Mamma alias Mahesh who asked them to go to the family cabin and to wait for tea. Further, in her trial statement she had made some statements discrepant with the statements made in the first information report, the statement recorded under section 164 Criminal P. C. and the statement recorded at the committal stage. They are particularly with reference to the manner and the circumstances under which Gopal and Arjun left the family cabin and the manner in which Mst. Draupdi raised an alarm when Gopi Shanker began the criminal assault upon her. The question is whether the statement of Mst. Draupdi is of a character which can by itself sustain conviction or whether it requires corroboration by independent evidence. 27. Now, the principles relating to the need of corroboration of a prosecutrix in rape cases have been laid down in two decisions of the Supreme Court, namely, Rameshwar s/o Kalyansingh vs. State of Rajasthan(8) and Sidheswar Ganguly vs. State of West Bengal(9). In Rameshwar vs. State of Rajasthan(8) the Supreme Court made it clear that (1) the prosecutrix in a case of rape cannot be treated as an accomplice and consequently, the principle requiring corroboration in respect of an accomplice witness cannot have application in considering the evidence of a prosecutrix in a rape case; (2) that the Evidence Act nowhere provides that the evidence of a prosecutrix in a rape case requires corroboration; and that (3) as a matter of prudence courts have insisted on the need of corroboration of the evidence of the prosecutrix. The eventual principle laid down by the Supreme Court was finally stated as follows:— "The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge, and in jury cases, must find place in the charge, before a conviction without corroboration can be sustained." It was further added, "The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in everycase, be corroboration, before a conviction can be allowed to stand." Dealing with the nature and extent of corroboration, their Lordships observed— "It would be impossible, indeed it would be dangerous to formulate the kind of evidence which should, or would, be regarded as corroboration. Its nature and extent must necessarily vary with the circumstances of each case and also according to the particular circumstances of the offence charged. But to this extent the rules are clear." First— it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant or the accomplice, should in itself be sufficient to sustain conviction; Secondly—the independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime; Thridly—the corroboration must come from independent sources; Fourthly—the corroboration need not be direct evidence that the accused committed the crime." Emphasising the expression in the second rule quoted above that "the independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some materia] particular the testimony of the accomplice or complainant", the counsel for the accused contended that in order to connect the accused with the crime mere corroborative evidence showing that the prosecution story is more probable and safe to act upon is not sufficient. There must be independent evidence to connect the accused with the crime. I regret, I cannot accept this contention. The Supreme Court made it clear that there can not be any hard and fast rule as to the nature and extent of the evidence required to corroborate the case. Their Lordships also made it clear that the corroboration should be such as to render the prosecution story reliable and safe to act upon and that this general statement was made both in connection with the proof of the commission of the crime as also in connection with establishing the identity of the offender. Their Lordships also made it clear that the corroboration should be such as to render the prosecution story reliable and safe to act upon and that this general statement was made both in connection with the proof of the commission of the crime as also in connection with establishing the identity of the offender. The expression in rule two appears to have been used only to contrast the two main subjects on which corroboration is needed. The contention of the counsel in this behalf therefore merits no consideration. 28. Now, the question as to what should be the test to determine whether the evidence of a prosecutrix requires to be corroborated or not, came up before the Nagpur High Court in State Government. Madhya Pradesh v. Sheodayal Gurudayal (10) where the law was laid down as follows,— "The test as to whether corroboration is necessary lies in the naturalness of the story deposed to by the prosecutrix. If there be any doubt as regards its genuineness, there is the need of caution and therefore, of corroboration. For this purpose it is not necessary that the entire story should appear doubtful. It is sufficient if any part of the narration has the semblence of exaggeration or artificiality." I have no objection in adopting the broad test laid down in Nagpur case but without treating it as any rigid rule of law. In my opinion, the question whether the statement of the prosecutrix requires corroboration and in what particulars and what kind of corroboration should be considered sufficient, are in the ultimate analysis questions relating to the correct and proper appreciation of evidence and must be answered with reference to the facts and the circumstances of individual cases and the principles laid down in the cases should be looked at merely guiding principles and not inflexible rule of law. Proceeding to consider the statement of Mst. Draupdi in the light of the principles indicated above, I may atonee observe that the trial court has not considered the statement of Mst. Draupdi as sufficient to sustain conviction. It may be pointed out that Mst. Draupdi made various discrepant statements and improved and exaggerated the case by naming and identifying Tulsi and Sher Singh even though she could not identify them at a prior parade. She even made bold and said that she had identified them at a prior parade. Draupdi as sufficient to sustain conviction. It may be pointed out that Mst. Draupdi made various discrepant statements and improved and exaggerated the case by naming and identifying Tulsi and Sher Singh even though she could not identify them at a prior parade. She even made bold and said that she had identified them at a prior parade. The conduct of Arjun, Gopal and Mst. Draupdi as will be detailed at a later stage prima facie does not appear to be usual and normal. The statement of Mst. Draupdi needs corroboration to sustain conviction. At an earlier stage Mr. Bhim Raj had made a submission that the statement of Mst. Draupdi should be treated as wholly unreliable and emphasised various discrepancies and contradictions. But, when I proceeded to examine and discuss in detail these contradictions and discrepancies with a view to properly appraise and appreciate them, the learned counsel did not press the point and emphasised only that the statement of Mst. Draupdi should be considered as partly unreliable. In the circumstances, I have to see whether there is corroboration of the statement of Mst. Draupdi both with regard to the commission of the crime and the complicity of each of the accused-appellants. In examining this matter I consider it proper and convenient to deal with the matter by breaking the prosecution story in some parts as detailed below— (1) That the girl entered the Agra Hotel at 10-30 p.m. and remained there or was kept in the hotel or partly remained or partly kept in the hotel up to 3-30 a.m., (2) Whether during this interval of her presence Gopi Shanker, Mahesh Chand, Arjun and Gopal, enjoyed drinks, (3) Whether after the drinks were over Mst. Draupdi was subjected to sexual intercourse by all or some of the accused, (4) Whether the sexual intercourse was committed with or without the consent of Mst. Draupdi : 29. As regard the first part, there is overwhelming evidence to show that the girl was in the hotel from 10-30 p.m. to 3-30 a.m. (Whether she remained there voluntarily or was kept by force or otherwise, is not very material for determining the liability of the various accused for the offence of rape. In the first instance, there is the evidence of Mst. Draupdi herself. Corroboration is also available from the evidence of Arjun and Gopal. In the first instance, there is the evidence of Mst. Draupdi herself. Corroboration is also available from the evidence of Arjun and Gopal. Then there is the evidence of Gyanendra Kumar PW/4 who intervened three times and on the last occasion he saw the girl (Mst. Draupdi) in a naked condition being taken by Mahesh and Shiv Kumar and Gopi Shanker giving a push. Above all, there is the evidence of Mangla Ram and Gyanendra Kumar that they saw the girl being thrown down the stair-case of the Agra Hotel. Even the defence witness Ram Nath DW/1 sees Mst. Draupdi and Arjun near the Agra Hotel at the relevant time. A version was put forward on be-half of the defence that Mst. Diaupdi and Arjun were seen in circumstances showing their vagrancy near the Agra Hotel and they were asked by the Police constable to accompany them to the Police Station and that they tried to run away on cycle but fell down and got injured. The trial Judge has discarded the evidence of Ramnath who was produced to support this version and gave a number of reasons for doing so. In my opinion, the defence version is not fit to be accepted and the prosecution case that Mst. Draupdi remained in the hotel from 10-30 p.m. to 3-30 a. m. stands nearly proved. In fact, the defence also did not join any serious controversy on this aspect of the case. 30. The second part of the story is also abundantly proved by the evidence of Mst. Draupdi, Arjun and Gopal and by the evidence of Parath Singh who found few articles near the family cabin lending support to the prosecution case. This part of the prosecution case also stands proved and the counsel for the defence could not urge any substantial argument to displace this finding. 31. That during this interval Mst. Draupdi was subjected to sexual inter course also stands clearly proved. Besides the statement of Mst. Draupdi, there is the evidence of Dr. Har Govind PW/9 who has deposed that his examination of Mst. Draupdi revealed that she had recent fresh sexual intercourse several times. Then the circumstance that this young girl remained in the hotel for quite a long period and that there were drinks also lends assurance to her story that she was subjected to sexual intercourse. 32. Har Govind PW/9 who has deposed that his examination of Mst. Draupdi revealed that she had recent fresh sexual intercourse several times. Then the circumstance that this young girl remained in the hotel for quite a long period and that there were drinks also lends assurance to her story that she was subjected to sexual intercourse. 32. The question next emerging the consideration is : where all or some of the accused had sexual intercourse with her. I proceed to examine cases of each of the accused in detail. 33. The next and the crucial controversy is whether the sexual intercourse by these four persons was committed with or without the consent of Mst. Draupdi. At this stage, it will be proper to point out that some statements have been made in decided cases and in text on jurisprudence to the effect that "An unwilling girl is bound to resist an attempt of rape and is expected to suffer injuries on that account." There are also statements to the effect that "it is hardly possible for one man to commit rape upon a healthy unwilling woman except under certain special circumstances." These statements are sometimes relied upon to ignore the distinction between what may be described as passive non-resistance and consent. It will be therefore proper to have a correct conception of what should be treated as a consent on the part of the prosecutrix. Such a point came for consideration in Rao Harnarain Singh Sheoji Singh vs. The State (11). Tek Chand J. brought home the distinction between "pasive submission" and "consent" in the following words : "A mere act of helpless resignation in the face of inevitable compulsion, quiescence, nonresistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be consent as understood in law. Consent on the part of a woman, as a defence to an allegation of rape, requires voluntary participation, not only after the exercise or intelligence, based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistence and assent. Submission of her body under the influence of fear or terror is no consent. There is a difference between consent and submission. Submission of her body under the influence of fear or terror is no consent. There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent Consent of the girl in order to relieve an act of a criminal character like rape must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to ones will or pleasure." These observations were quoted with approval in In re Anthony alias Bakthavatsalu (12) and Arjan Ram Naurata Ram vs. The State (13). I respectfully agree with the statements made by Tek Chand J. on the conception of "consent." 34. In considering the question of consent," it will be also useful to refer to some observations made in Dr. Gours Penal Law, Seventh Edition, Page 1845:— "The question of consent is by far the most important in the case Of course, such consent may be express or implied. If it is an express consent, a case will seldom be taken to court. If it is taken to court it will have to consider if such consent was likely to have been given by the prosecutrix. Excepting, of course, the case of prostitutes and other mercenaries, women are seldom prone to translate their thoughts in these matters into words, They usually leave the matter of consent to tacit understanding. In such cases consent becomes a matter of inference to be made from evidence of previous or contemporaneous acts and conduct and other surrounding circumstances." It may be further observed that non resistance, if not otherwise accounted for, should be real and not unreal, for there is such a thing as maiden modesty, and some resistance is simulated even by women who are most anxious for the connection. In determining the question of consent these guiding principles deserve to be kept in view. 35. Proceeding to examine the question of consent or no consent in the present case, it will be pertinent to observe that none of the accused have pleaded having had sexual intercourse with Mst. Draupdi with her consent. All of them have come forward with a complete denial. 35. Proceeding to examine the question of consent or no consent in the present case, it will be pertinent to observe that none of the accused have pleaded having had sexual intercourse with Mst. Draupdi with her consent. All of them have come forward with a complete denial. In the circumstances, a version explaining the manner and the circumstances under which the consent was given and further explaining as to how even (when the entire series of sexual intercourse with the girl was with her consent) Mst. Draupdi received injuries and why there was a fight between Gopal and Arjun on the one hand and the hotel staff on the other hand leading to the throwing down of the girl in naked condition, could not and has not been put directly before the Court. The accused merely relied upon some circumstances appearing from the prosecution evidence and the inferences to be drawn from them and upon the abstract doctrine of the burden of proof being on the prosecution. The various suggestions in this behalf have been indicated earlier. With these introductory observations, I proceed to examine the cases of each of the accused, 36, 37, 33 and 39 ... ... ... ... ... ... ... Even at the cost of repetition I must state that it is impossible to hold that she would submit her person to various persons in spite of the fact that she was not so healthy and had delivered only two months back. Even assuming that the girl might have been brought to the hotel under some prior arrangement, it must be held reasonably that the other accused took advantage of the situation and over-steppped and subjected the girl to sexual intercourse without her consent on the occasions. On a consideration of the evidence and all the circumstances of the case, I think it reasonable to record my agreement with the Additional Sessions Judge that Mahesh Chand, Shiv Kumar and Dhan Singh had sexual intercourse with Mst. Draupdi without her consent and they have been rightly convicted under section 376, Indian Penal Code. 40. Now, I take up the question of the liability of Gopi Shanker, Ram Chand Shiv Kumar and Tulsi as abettor in the offence. So far as Gopi Shanker is concerned, it would be relevant to state a few facts. Draupdi without her consent and they have been rightly convicted under section 376, Indian Penal Code. 40. Now, I take up the question of the liability of Gopi Shanker, Ram Chand Shiv Kumar and Tulsi as abettor in the offence. So far as Gopi Shanker is concerned, it would be relevant to state a few facts. Gopishanker is the proprietor of the hotel and the entire hotel building is at his disposal. After Mst. Draupdi entered the hotel and went along with her husband and Gopal to family cabin and waited for tea, Gopi Shanker and Mahesh Chand appeared on the scene with wine and soda bottles. They enjoyed drinks for some time and then Arjun and Gopal were sent down and Gopi Shanker had sexual intercourse with Mst. Draupdi. After doing so, he called Mamma alias Mahesh Chand. Then Mamma had sexual intercourse with Mst. Draupdi. At that time Gopi Shanker remained standing near the scene. Then followed Shivkumar, Dhansingh who also had sexual intercourse with Mst. Draupdi. Manak is alleged to have also committed sexual intercourse but he is not before me and it will not be proper to say anything in connection with his case. When Mst. Draupdi was brought from the cabin on the insistence of Gyanendra Kumar she was brought in naked condition by Mahesh and Shiv Kumar and Gopi Shanker gave a push to her. Gopi Shanker thereafter took an active part in the fight between the hotel employees and Gopal and Arjun and got the telephone wire cut off when Gopal wanted to inform the police. The facts that Gopi Shanker remained in the hotel, that he called Mahesh Chand and that he appeared on the scene when the girl was brought and finally, he got the telephone wires cut off, all unmistakably lead to the conclusion that Gopi Shanker instigated as also intended and actually facilitated the commission of crimes by other persons. Gopi Shankers liability as an abettor for the offences committed by Mahesh, Shiv Kumar and Dhansingh thus stands clearly proved. 41. I do not find sufficient materials on record to arrive at a conclusion that Ramchand, Sher Singh and Tulsi did in any way abet the commission of crimes by the other persons. They are merely employees of the hotel and acted simply under order of their employer. 42, 43 ... ... ... ... ... ... ... ... 44. 41. I do not find sufficient materials on record to arrive at a conclusion that Ramchand, Sher Singh and Tulsi did in any way abet the commission of crimes by the other persons. They are merely employees of the hotel and acted simply under order of their employer. 42, 43 ... ... ... ... ... ... ... ... 44. From the foregoing discussions the net result is that conviction of Gopi Shanker is altered from section 376 to section 376 read with section 109. Conviction of Gopi Shanker under section 323, is also maintained. Convictions of Mahesh Chand, Shiv Kumar Suri and Dhan Singh under section 376 and 323 are maintained. Their convictions under section 342 are set aside. Convictions of Ram Chand and Sher Singh under section 376 and 342 are set aside. Convictions under section 323 are maintained. Conviction of Tulsi on all the counts are set aside. I now take up the question of sentence and I propose to deal with it in a little detailed manner for two reasons— (a) I have found in the judgments coming before me great and extreme variations in the sentences awarded by the lower courts. (b) Some of the presiding officers of the lower courts had on occasions discussed with me on the question of sentence. It may be stated at the out-set that the question of award of sentence is a matter of discretion of the Judges, and the discretion has to be exercised on a consideration of the circumstances aggravating or mitigating of individual cases as also circumstances relating to the character and antecedents of the individual accused and it is impossible to expect mathematical uniformity in the sentences. I may also add that inspite of directions or insturctions and even professions to the contrary the personal philosophy of the Judges and their experience and knowledge of human affairs cannot but enter in the determination of the sentence. All the same, there are certain basic considerations which must be kept in view in determining the sentence to be awarded in particular cases. It may be stated that initially retribution was considered the main object of punishment and tooth for tooth and eye for eye was the ordinary rule then prevailing at the time. All the same, there are certain basic considerations which must be kept in view in determining the sentence to be awarded in particular cases. It may be stated that initially retribution was considered the main object of punishment and tooth for tooth and eye for eye was the ordinary rule then prevailing at the time. With the development of biological and social sciences and growth of knowledge of behavioural patterns, reformation and rehabilitation and prevention of offences came to be recognised as the objects of punishment. Indeed correctional philosophy has been cautiously progressing towards emphasis on rehabilitation and reform as well as social protection rather than retribution and punishment. Emphasis is also sometimes laid on the need of deterrent punishment to deter persons from committing crimes. None of these theories emphasising retribution, deterrence, reformation or prevention could escape criticism. The retributory theory was referred by Lord Justice Asquith as the one so discredited that to attack it is to flog a dead horse. Commenting over the propriety of righteous indignation associated with the retributory theory in awarding punishment Allen went to the extent of observing as follows— "What is righteous indignation? For myself, I view it with great caution. There is no judge whom I distrust more than the one who gives vent to his moral indignation in passing sentence. Are we not here dressing a wolf in sheeps clothing? Vengeance lies in our most primitive instincts, which all morality tells us to school and control. Bacon called it a kind of wild justice, and because it is wild, it is not justice." Crime should not be emphasised as an issue between criminals and the society or individuals wronged but as a social problem demanding an earnest and continous attention and just solution in the context of the preventing conditions. Considering the efficacy of the deterrent sentences, Allen noticed the shift from the past opinion to avenge the crime more and more severely and a growing realisation that mere repression cannot be the sole effective answer to crime. Considering the efficacy of the deterrent sentences, Allen noticed the shift from the past opinion to avenge the crime more and more severely and a growing realisation that mere repression cannot be the sole effective answer to crime. According to him the belief of the ardent philanthropists of the past that the hope of reformation lies in grinding a brute labour on the one hand and compulsory religious instructions on the other hand is not shared by reasonable and experienced persons and there is developing a different penology based on attacking crime at its source than scourging it for its results. Reformatory theory has its limitations and its success is not precisely open to assessment. It must depend upon the general attitude of the public to the crime to the offender and to the discharged offender and upon the attitude of those responsible for the punishment. As a matter of fact no individual theory can be treated valid for all times and all people and the correct and balanced view appears — "Whilst the decision as to whether a. person is punishable must be based on considerations bearing solely upon his past actions, the decision about whether actually to punish him, and in what way to do it, must be decided with a view to the present state and future good of both society and himself : the decision as to what is good in such a situation can be grounded only upon a thorough examination of the possibilities of deterrence and reformation within the limits set by considerations of the degree of guilt of the offender." Punishment to be proper, fair, effective and purposeful, must fit not only the crime but also the criminal. As one criminologist puts it: "Punishment is an art which involves the balancing of retribution, deterrence, prevention and reformation in terms not only of the courts but also of the prevailing values and in balancing the purposes of punishment first one and then another receives emphasis as accompanying con ditions change." I also record my agreement with some of the jurists who have formulated the following principles :— 1. An excessive punishment, instead of being a deterrent, often results in the generation of an angry public contempt of justice because of its severity, and does not reform the criminal who perceives injustice towards himself. 2. An excessive punishment, instead of being a deterrent, often results in the generation of an angry public contempt of justice because of its severity, and does not reform the criminal who perceives injustice towards himself. 2. Severity of sentence is far less effective as a deterrent to crime than certainty of detection and sentence. 3. Severity of punishment alone will never permanently solve the crime problem, but impo sition of a series of severe sentences frequently temporarily at least, tends to suppress a local crime wave." These recent trends have been recognised and approved by the Supreme Court of India in Indo-China Steam Navigation Co. Ltd., vs. Jasjit Singh(14) for ordinary crimes although some special crimes have been excluded. "It is true that modern criminology does not encourage the imposition of servere or savage sentences against criminals beacuse the deterrent or punitive aspect of punishment is no longer treated as a valid consideration in the adminis tration of criminal law. But it must be remem bered that ordinary offences with which the normal criminal law of the country deals are committed by persons either under the pressure of provoked and unbalanced emotions, or as a result of adverse environments and circumstances, and so, while dealing with these criminals who, in many cases, deserve a sympathetic treatment and in a few cases, are mere sinned against than sinners, criminal law treats punish ment more as a reformative or corrective than as a deterrent or punitive measure." In considering the punishment for offence of rape, I think it proper to refer to some observations made in Gours commentary. "The offence owes its enormity to the defilement and dishonour it reflects on the whole family. For, if men prize anything above all others, it is the honour of their women, and their forcible ravishment arouses all those feelings of retaliation and revenge which have accounted for so much bloodshed in history." In Emperor vs. Mahadeo Tatya (15) Beaumont C.J. considered three to five years as a normal sentence for an offence of rape. The counsel for the appeallant invited my attention to the case State vs. Rameshwar (16) decided by this Court. This Court while convicting Rameshwar of an offence of rape upon a minor girl awarded a sentence of one year only and the conviction and sentence were affirmed by the Supreme Court vide Rameshwar vs. State of Rajasthan (8). The counsel for the appeallant invited my attention to the case State vs. Rameshwar (16) decided by this Court. This Court while convicting Rameshwar of an offence of rape upon a minor girl awarded a sentence of one year only and the conviction and sentence were affirmed by the Supreme Court vide Rameshwar vs. State of Rajasthan (8). In the present case, there are circumstances both aggravating as well as mitigating. As an instance of mitigating circumstance, I may point out that the conduct of Arjun and Gopal in going with Mst. Draupdi to the hotel and availing of free drinks offered by Gopi Shanker in the presence of Mst. Draupdi at an odd hour of the night and their subsequent conduct indicate their indifference and one of the reasons recited in Gour for treating the offence of rape as an offence of more gravity may be said to be missing in the present case. The present case can be conceived as the case where the girl having visited Agra Hotel under some kind of pre-arrangement the accused exploited the situation, overstepped and committed excesses with the girl and thus made themselves liable for the offence. The injuries suffered by Mst. Draupdi on the genitals have also not been shown to be very severe. These circumstances may be rightly conceived as mitigating circumstances. As an instance of aggravating circumstance, I may point out that the hotel is a public place and is vistited by persons without any risk to themselves. The owner of the hotel and the employees have special responsibility to behave properly and if the proprietor and the employees behave in the manner in which they are proved to have done in the present case a serious view of their conduct deserves to be taken. It is also to be regretted that the girl was thrown in a naked condition on the road with complete indifference to considerations of decency. On balancing all considerations, I think a sentence of two years for an offence under sec. 376 and 18 months and a fine of Rs. 500/- for an offence under sec. 376 read with sec. 109, Indian Penal Code, will meet the ends of justice. 46. The appeals are partially accepted. Conviction of Gopi Shanker under sec. 376 is altered to one under sec. 376 read with sec. 376 and 18 months and a fine of Rs. 500/- for an offence under sec. 376 read with sec. 109, Indian Penal Code, will meet the ends of justice. 46. The appeals are partially accepted. Conviction of Gopi Shanker under sec. 376 is altered to one under sec. 376 read with sec. 109 and the sentence is reduced to 18 months and a fine of Rs. 500/-. His conviction and sentence under sec. 323 are maintained. Convictions of Mahesh Chand, Shiv Kumar, Sher Singh and Dhan Singh under sec. 376 are maintained but the sentences are reduced to two years rigorous imprisonment. Their convictions and sentences under sec. 323 are maintained. Convictions and sentence of all the accused under sec. 342 are set aside. Convictions of Sher Singh and Ram Chand under sees. 376 and 342 are set aside and convictions and sentences under sec. 323 are maintained. Conviction and sentence of Tulsi on all counts are aside. Tulsi is on bail and need not surrender. Sher Singh and Ram Chand have undergone sentence under sec. 323 Indian Penal Code and they shall be released forthwith, if not required in connection with any other case. The sentences shall run concurrently. 47. Prayer to leave to appeal to Supreme Court made both by the State as also the accused is rejected.