Judgment ( 1. ) APPELLANT Sunil stands convicted under sections 376 (2) (g) IPC and under Section 3 (2) (v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and has been awarded sentences of Rigorous imprisonment for 10 years and Rigorous Imprisonment for life and fine of Rs. 1,000/- in default further Rigorous Imprisonment for 6 months respectively; and, appellant Ramesh stands convicted under Sections 376 (2) (g), 458,323 and 506 IPC and has been awarded life imprisonment, Rigorous Imprisonment for 5 years, Rigorous Imprisonment for 6 months and Rigorous Imprisonment for 1 year, by the judgment and order of conviction recorded by Special Judge, damoh in Special Case No. 419/1996 decided on 10-9-1997. ( 2. ) ALONG with appellants Sunil and Ramesh, Azad was also tried and prosecuted for commission of the said offences and has been found guilty for commission of the aforesaid offences, but he has not preferred any appeal. Today, we have again got it verified from the Office and have been informed that he has not preferred any appeal. ( 3. ) WE have accordingly heard the learned Counsel for the appellants. Perused the record. ( 4. ) PROSECUTION story is as under : In the inter venting night of 8/9-9-1996, prosecutrix was living with her husband Mathulal in the house of one namdeo as his tenant. On the said date, after having their dinner her husband went to meet one of his close relatives across the road. At about 10. 00 PM, appellants Sunil and Ramesh alongwith third accused Azad came to the house of the prosecutrix. They knocked the door, inquired as to who all are the persons inside the house, on the pretext that they were trying to find out a thief. On coming to know that even the husband of the prosecutrix was not at home, they all left. When they had come to inquire with regard to the details of the inmates, at that time the close relatives of prosecutrix and her husband had also come and told them that this house is of his brother-in-law, where both of them live together. The accused thereafter started abusing the persons, who were there. On hearing the noise mother of accused Azad took him to his house, but he did not go, instead all the three sat on the culvert. The accused thereafter started abusing the persons, who were there. On hearing the noise mother of accused Azad took him to his house, but he did not go, instead all the three sat on the culvert. Other persons, who had collected there, also left for their respective places. ( 5. ) AFTER some time accused again came to the house of prosecutrix and started beating the main door. As soon as door was opened, accused Ramesh and Azad went inside the house whereas accused Sunil remained out of the house, so as to keep a vigil on the persons passing through. After entering the house of the prosecutrix Ramesh bolted it from inside and Azad was wielding a knife. Azad put the said knife on the neck of Mathu, husband of the prosecutrix. Ramesh was also having a lathi in his hand. Both accused Ramesh and Azad threatened them that if they make any noise or cry for help, they would be done away with. ( 6. ) AZAD then passed the knife to Ramesh, who kept it on the neck of mathu and Azad broke one bottle which he kept on the prosecutrix and then committed the offence of rape with her. After satisfying his lust for sex, same thing was repeated by Ramesh, who then took the broken bottle in his hand and gave the knife to co-accused Azad, and in the same process he also committed offence of rape on prosecutrix. At that time, son of the prosecutrix started crying, husband of the prosecutrix was threatened to pacify the young child failing which to face dire consequences. After having committed offence of rape, both accused Ramesh and Azad left the house threatening the prosecutrix and her husband not to lodge a report, otherwise they will be done away with. As soon as they left the house, prosecutrix came out of her house, shouted for help. Her husband also came out and shouted for help. Many persons had assembled there. ( 7. ) PROSECUTRIX then went to the Police Station and lodged the FIR on 9-9-96, at about 3. 30 AM. The distance between the place of offence and Police station was 1 Km. Ex. P/16 is the FIR lodged by the prosecutrix within one hour and thirty minutes of the commission of the offence. ( 8. ( 7. ) PROSECUTRIX then went to the Police Station and lodged the FIR on 9-9-96, at about 3. 30 AM. The distance between the place of offence and Police station was 1 Km. Ex. P/16 is the FIR lodged by the prosecutrix within one hour and thirty minutes of the commission of the offence. ( 8. ) ON report being lodged, offences as mentioned hereinabove were registered against the appellants and Azad. After completion of usual investigation, charge-sheet for the aforesaid offences was filed against them before the competent criminal Court. Prosecution examined witnesses on its behalf to bring home the charge against the accused. Accused did not examine any witness in defence, instead pleaded that they have falsely been implicated in the case. ( 9. ) ON appreciation of evidence available on record, all the three accused have been found guilty for commission of offences, as mentioned hereinabove. Hence these appeals, which were heard analogously and are being disposed of by this common order. ( 10. ) IT has already been mentioned above that third convicted accused azad has not preferred any appeal. ( 11. ) THE learned Counsel for the appellants strenuously submitted that most of the witnesses have turned hostile therefore, the evidence of prosecutrix and her husband PW-14 Mathulal is not sufficient to hold them guilty for commission of the said offences. They have contended that unless it is proved that their evidence was of sterling quality, appellants should not have been held guilty for the same and according to them critical examination of their evidence would show that it does not stand to the test of sterling quality. The witnesses who have turned hostile are PW-5 Darbari, PW-6 Santosh, PW-7 Dallu, PW-8 aslam, P W-9 Raghunath and PW-11 Sarju Prasad. In the light of these witnesses having been declared hostile, it has become necessary for us to critically examine the evidence of PW-13 prosecutrix and PW-14 Mathulal, her husband. ( 12. ) PROSECUTRIX has deposed that on the relevant date at about 10 PM, when her husband was not in the house, all the three accused had come and informed that some thief had entered the house. Under this pretext, they wanted to see the house from inside, but on being informed that no-one had entered the house they went back. ) PROSECUTRIX has deposed that on the relevant date at about 10 PM, when her husband was not in the house, all the three accused had come and informed that some thief had entered the house. Under this pretext, they wanted to see the house from inside, but on being informed that no-one had entered the house they went back. After sometime, they returned back and at that time Ramesh and Azad entered the house. Ramesh bolted the house from inside, Sunil was standing out of the house to keep a vigil on the passes by. Thereafter, she has narrated the manner in which both the accused, who were inside the house i. e. , to say Azad and Ramesh committed offence of rape. She has further deposed that since knife was put on the neck of her husband and broken bottle of liquor was on her body, she got extremely scared. She has also deposed that both the accused were saying that they will sleep in the same house so that they could have repeated the offence later on, but on shout being raised by her, they left. It is also to be seen that she went to the Police Station and lodged the report Ex. P/16 within one hour and thirty minutes of the commission of the offence. ( 13. ) PW-14 Mathulal has also repeated the same story which was deposed by his wife, the prosecutrix. He has deposed that Ramesh and Azad had entered the house. Ramesh bolted it from inside. Ramesh was wielding knife and Azad was holding a broken bottle and under threat both of them one by one committed offence of rape on his wife, before his eyes. He has also deposed that sunil, the third accused, was standing out of the house and did not actually commit the offence of rape. ( 14. ) CRITICAL examination of the evidence would show that both PW-13 the prosecutrix and PW-14 Mathulal, her husband, have deposed in one voice the manner in which offence of gang-rape was committed on prosecutrix and how third accused Sunil was standing out of the house, so as to keep vigil on the persons going on the road. PW-14 Mathulal also deposed that he had sustained bodily injury. He was examined by PW-2 Dr. N. K. Malhotra, on 10-9-96, in Civil hospital, Damoh. His medical report in Ex. P/1. PW-14 Mathulal also deposed that he had sustained bodily injury. He was examined by PW-2 Dr. N. K. Malhotra, on 10-9-96, in Civil hospital, Damoh. His medical report in Ex. P/1. In the said report, he has mentioned that on examination of PW-14 Mathu, an injury was found on the left arm. The injury was simple in nature and was caused within 24-48 hours. It could have been caused by hard and blunt object. Same Doctor had examined accused Ramesh on 16-9-96; and Azad was examined by the same Doctor on 21-9-96, and certain injuries were found on their bodies. The dates of their examination would show that Ramesh was examined after 7 days; and, Azad was examined after 12 days from the date of commission of the offence. Thus, even if injuries were found on the persons of accused, it could not be related to the same incident on 9-9-96. Apart from the above, it was not the case of the appellants that they were also assaulted by mathu on the said date, when they had gone to the house of the prosecutrix. Had they really been assaulted on the said date and sustained any injuries, then they could have lodged the FIR, or could have moved an application before the concerned Magistrate for their examination by Doctor. Not having done so, it can not be said that these accused had sustained any injuries in the same incident. Not only this, they did not even make any suggestion to the prosecution witnesses that in the same incident they had sustained bodily injuries. ( 15. ) PW-3 Dr. Sangeeta Trivedi had examined the prosecutrix on 9-9-96. She had found two scratches on both the elbows. Prosecutrix was also complaining of pain in and around vagina, but no such injuries were found. Vaginal swabs and slides were prepared and handed over to the Constable in a sealed cover, but no chemical examination report is available on record. Ex. P/5 is the report prepared by Dr. Sangeeta Trivedi, after examination of the prosecutrix. No definite opinion has been given by Doctor with regard to commission of the offence, as the prosecutrix was already a married lady and was used to having sexual intercourse. ( 16. Ex. P/5 is the report prepared by Dr. Sangeeta Trivedi, after examination of the prosecutrix. No definite opinion has been given by Doctor with regard to commission of the offence, as the prosecutrix was already a married lady and was used to having sexual intercourse. ( 16. ) THE learned Counsel for the appellants submitted that in view of serious contradictions appearing in the evidence of PW-13 the prosecutrix and pw-14 Mathulal, her husband, they should not have been relied upon. As has been mentioned hereinabove, we have already critically gone through their evidence. No doubt, it is true that there are some contradictions but such contradictions are minor in nature. It is obvious that when two witnesses are narrating the same story, some contradictions are likely to take place. If they do not take place, then the possibility of the witnesses being tutored like parrots could not be ruled out. The contradictions as pointed out by the learned Counsel for the appellants do not make these witnesses untrustworthy. In the main story of the prosecution there is no material contradiction. Both of them have deposed the manner in which the accused had entered the house of the prosecutrix and then committed the offence of rape. ( 17. ) THE learned Counsel for the appellant Sunil submitted that atleast he should not have been found guilty for commission of offence, as admittedly he had not committed offence of rape and was standing outside the house. However, this does does not appeal to reason in the light of Explanation-1 appended to Section 376 IPC. For ready reference, Explanation-1, of Section 376 IPC, is reproduced here in below:- "explanation 1:- Where a women is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. " Wordings of Explanation-1 would show that they are akin to Section 34, of the Indian Penal Code. It can not be disputed that all the three accused persons acted in furtherance of their common intention and certainly Sunil has helped the other two persons to have committed the offence of rape, as he was standing outside the main entrance of the prosecutrixs house so as to raise an alarm, in case it was required. It can not be disputed that all the three accused persons acted in furtherance of their common intention and certainly Sunil has helped the other two persons to have committed the offence of rape, as he was standing outside the main entrance of the prosecutrixs house so as to raise an alarm, in case it was required. Prosecution has been able to prove by adducing sufficient evidence to show that all the accused had acted in concert and in such an event; if rape had been committed by other two accused, all the accused would be guilty irrespective of the fact that the prosecutrix might have been raped by two of them only. This explanation embodies the principles of joint liability and the essence of that liability is the existence of common intention. The common intention pre- supposes prior concert. In this case, it has not been disputed that Sunil was present all though the incident, outside the house of the prosecutrix. He had come alongwith the other two accused and remained there throughout the commission of the offence. Thus, his common intention in furtherance of their object is clearly made out. As such, no latitude can be shown to appellant Sunil. ( 18. ) WE are fortified in our view by the judgments pronounced by supreme Court; reported in AIR 2003 SC 777 (Ashok Kumar Vs. State of haryana) and AIR 2003 SC 4684 (Bhupinder Sharma Vs. State of Himachal pradesh ). In the light of aforesaid judgments, no case was made out for awarding any lesser punishment to this appellant Sunil. ( 19. ) IN view of the following discussions, we are of the opinion that there is no merit or substance in this and the connected appeal. The conviction and sentences awarded to the appellants are hereby upheld. The appeals are dismissed. ( 20. ) APPELLANT Sunil is on bail. He shall surrender to his bail bonds so as to undergo the remaining period of sentences, awarded to him. Appellant ramesh is already in jail. Criminal Appeal dismissed.