JUDGMENT 1. - 'W' (name with held by us) a married girl of 16 years was gang raped and killed by administering poison. Balkesh, lndraj and Shiv Ram (appellants in appeals No. 1033/2001 and 979/01) were put to trial for having gang-raped and murdered 'W' before the learned Additional Sessions Judge Neemka Thana who vide judgment dated November 22, 2001 found charge of gang-rape established and convicted and sentenced the appellants under section 376(2)(g) IPC to suffer rigorous imprisonment for ten years and fine of Rs. 15000/-, in default to suffer rigorous imprisonment for one year. Since the appellants were acquitted of the charge of murder, the State of Rajasthan assailed the finding of acquittal in appeal No. 567/2002. 2. The prosecution story is woven like this: On March 14, 1995 around 4.15 PM Budh Ram (Pw.3) handed over a written report (Ex.P.2) to SHO Police Station Neem Ka Thana to the effect that while he was passing through the field of Rughnath he saw 'W' lying unconscious on a cot. Her grand mother and 15 grand father were standing nearby. The informant arranged for a camel-cart and proceeded to the hospital with 'W' but she died on the way. On that report the 10 initiated the proceedings under section 174 Cr.PC. Another written report (Ex.P-4) was submitted by Sunda (Pw.5) to Dy. S.P. Neemka Thana on March 19, 1995 with the averments that on March 14, 1995 while his niece 'W' was watering the field, lndraj, Bugla and Balla committed rape on her and poured something in her mouth as a result of which she died. It was further stated in the report that on March 18, 1995 a meeting of villagers was summoned. In the meeting lndraj, Bugla and Balla admitted their guilt. Pursuant to the directions of Dy. SP, the SHO Neemka Thana registered a case under sections 376 and 302/34 IPC and investigation commenced. Site was inspected, statements of witnesses under section 161 Cr.P.C. were recorded, appellants were arrested, necessary memos were drawn and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Neemka Thana District, Sikar. Charges under sections 376 and 302/34 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 18 witnesses. In due course the case came up for trial before the learned Additional Sessions Judge Neemka Thana District, Sikar. Charges under sections 376 and 302/34 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 18 witnesses. In the explanation under Section 313 Cr.PC., the appellants claimed innocence. Nine witnesses in support of their defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. 3. We have heard learned counsel for the appellants, learned Public Prosecutor and with their assistance scanned the material on record. 4. The prosecution examined Rajbala (Pw.16) and Dakhli (Pw.17) as eye witnesses of the incident. Rajbala (Pw.16) in her deposition deposed that on March 14, 1995 while she and her mother (Dakhli) were on the field and 'W' was watering wheat crop. lndraj, Bugla and Balkesh came over there, dragged W towards mustard field. Balkesh committed rape on 'W' whereas other two caught hold of her hands and gagged her mouth. After ravished her, they poured something in her mouth and fled away. She and her mother took 'W' near the well and made her lie on cot. After some time Bud Ram took 'W' on camel-cart to the hospital. In her cross examination she deposed that grand mother and grand father of 'W' were not present near the place of incident. She disowned major part of her police statement (Ex.D-12). A look at the statement (Ex.D-12) goes to show that she did not state that Bugla and Indraj caught hold of hands of 'W' and gagged her 25 mouth. This fact was also not revealed by her in the inquiry held by SDM under section 174 Cr.P.C. 5. Dakhli (Pw.17) in her deposition stated that Balla committed rape on W and lndraj and Bugla caught hold of her hands and gagged her mouth. In her police statement (Ex.D-15) she however did not state that Indraj caught hold of hands of 'W' and Bugla gagged her mouth. 6. Sunda Ram (Pw.5) in his cross examination admitted that on the date of incident he was serving as Inspector BSF Tekanpur. On being directed by his Commandant he proceeded to his village. For the first time he came to know about death of 'W' on March 18 at 10 AM. 6. Sunda Ram (Pw.5) in his cross examination admitted that on the date of incident he was serving as Inspector BSF Tekanpur. On being directed by his Commandant he proceeded to his village. For the first time he came to know about death of 'W' on March 18 at 10 AM. He reached Neemka Thana around 12 in the night and submitted written report to Dy. SP in the morning of March 19, 1995. 7. Dr. Pramod Kumar Garg (Pw.13), who performed autopsy on the dead body along with other members of Medical Board, deposed that he did not find any injury on the person of 'W'. in the Post Mortem Report (Ex.P. 8) it was stated as under : "No mark of any injury seen. Two fingers can be easily passed in vagina. She was used to sexual intercourse. Old tear hymen seen. Uterus healthy." Viscera and other parts of body were sent to FSL. The FSL report (Ex.P-18) reads thus : "On chemical examination of viscera and pieces of liver, kidney and small intestines kept in packets marked A and B gave positive test for the presence of Organo Phosphorous Insecticide." 8. One underwear which was recovered at the instance of appellant so Balkesh @ Balla vide memo Ex.P-6, was sent to FSL. As per FSL report human semen was detected on the Underwear. 9. It also appears that SFIO PS Neemka Thana wrote a letter (Ex.P-16) to Medical Jurist Neemka Thana, wherein he sought following clarification : " d`i;k ;g voxr djkus dk d"V djsa fd rhu vknfe;ksa }kjk cykRdkj la?k"kZ ds nkSjku ml yM+dh ds 'kjhj eqag esa tcju dksbZ tgj oxSjg Mkyrs le; mls pksV vkuh pkfg, ;k ugha\ " Members of Medical Board, returned the letter in original to the SHO with the following endorsement : "6.30 PM dated 6.4.95 RIO with the remark that injury should be present if anything as mentioned above was done against her consent." 10. Having weighed the ocular and documentary evidence adduced at the trial we are of the view that charge of murder or abetment to commit suicide is not established against the appellants and they were rightly acquitted by the learned trial Judge of the said charge. 11. That takes us to the question whether charge of gang rape under section 376(2)(g) IPC is proved against the appellants? 12. In Pradeep Kumar v. Union Admn. 11. That takes us to the question whether charge of gang rape under section 376(2)(g) IPC is proved against the appellants? 12. In Pradeep Kumar v. Union Admn. 2006(2) WLC (SC) Cri. 433 : (2006) 10 SCC 608 their Lordships of the Supreme indicated that in order to establish the charge of gang rape following ingredients are required to be proved : "(i) that more than one person had acted in concert with the common intention to commit rape on the victim; (ii) that more than one accused had acted in concert in commission of offence of rape with pre-arranged plan, prior meeting of mind and with element of participation in action. Common intention would be action in concert in pre-arranged plan or a plan formed suddenly at the time of commission of offence which is reflected by the element of participation in action or by inaction when the action would be necessary. The prosecution would be required to prove pre-meeting of minds of the accused persons prior to commission of offence of rape by substantial evidence or by circumstantial evidence; and (iii) that in furtherance of such common intention one or more persons of the group actually committed offence of rape on victim or victims. Prosecution is not required to prove actual commission of rape by each and.every accused forming the group." 13. In the case on hand, as already noticed, the prosecution could not establish reasonable doubt that the appellants Indraj and Shiv Ram were present at the time of occurrence. The prosecution heavily relied on the testimony of Raj Bala and Dakhli, but their presence was not shown in the report (Ex.P-2). Even in their police statement they did not state Indraj and Shiv Ram caught hold of hands of 'W' and gagged her mouth. it was at the trial that they made attempt to implicate Indraj and Shiv Ram. It appears that Sunda Ram, being Inspector in Border Security Force, influenced the investigation after five days of the occurrence. In the facts and circumstances of the case possibility of Over implication of appellants Indraj and Shiv Ram cannot be ruled out. We, however, find that so far as allegation against Balla @ Balkesh are concerned, the prosecution evidence is consistent against him and he is found guilty for having committed rape on 'W' 14. In the facts and circumstances of the case possibility of Over implication of appellants Indraj and Shiv Ram cannot be ruled out. We, however, find that so far as allegation against Balla @ Balkesh are concerned, the prosecution evidence is consistent against him and he is found guilty for having committed rape on 'W' 14. Coming to the question of sentence, we notice that in the arrest-memo (Ex.P-15) age of appellant Balkesh @ Balla was shown as 18 years. It appears to us that offence was committed by him in his youthful exuberance. Age of 'W' was 16 years. Although she got married but her Gona ceremony was not performed. All these facts warrant imposition of lesser sentence. 15. In State of Rajasthan v. Ram Narain, (1996) 8 SCC 64 , the age of the prosecutrix was between 15 to 17 years and the age of accused was 18 years. Learned Sessions Judge convicted the accused under sections 376, to 366 and 342 IPC and sentenced him to undergo imprisonment for seven years, five years and one year respectively and imposed a fine of Rs. 200/-. On appeal the High reduced the sentence to the period already undergone, namely one and a half months. The Apex set aside the judgment of High and observed as under : (Para 7) "The question is : Whether the High is right in reducing the sentence to the period already undergone, i.e., one and a half months? We think that the High has committed grave error of law in reducing the sentence. Therefore, the judgment of High is set aside. The conviction of the first accused is upheld and he is sentenced to undergo rigorous imprisonment for 5 years under section 376 IPC." 16. In State of MP v. Munna Choubey, 2005 (1) WLC (SC) Cri. 353 : (2005) 2 SCC 710 , Hon'ble Apex propounded that no formula of a foolproof nature 16 possible that would provide a reasonable criterion in 25 determining a just and appropriate punishment. It was indicated in para 13 thus : "After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the . Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Council McGautha v. State of California, 402 US 182 that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may effect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criterion to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished." 17. Taking into account all the circumstances of the case we are of the opinion that ends of justice would be served by reducing the sentence. We, therefore, invoke the proviso appended to Section 376 IPC in order to award less sentence than the prescribed minimum. 18. For these reasons, dispose of the instant appeals in following terms: (i) We allow the appeal of appellants Indraj and Shiv Ram @ Bugla and acquit them of the charge under section 376(2)(g) IPC. These appellants are on bail, they need not surrender and their bail bonds stand discharged. (ii) We partly allow the appeal of appellant Balkesh @ Balla and instead of section 376(2)(g) we convict him under section 376 IPC and reduce his sentence from ten years rigorous imprisonment and fine of Rs. 15,000/- to six years rigorous imprisonment and fine of Rs. 500/- in default to further suffer fifteen days rigorous 5 imprisonment. The appellant Balkesh @ Balla has already served out the sentence of more than six years and he is still in jail, therefore, he shall be set at liberty forthwith, if he is not required to be detained in any other case. (iii) We find no merit in the appeal preferred by the State of Rajasthan and the same accordingly stands dismissed. (iv) The impugned judgment of trial stands modified as indicated above. Appeal of B Partly Allowed-Appeal of I and S Allowed. *******