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2009 DIGILAW 466 (GAU)

Baphira Kharkongor v. State of Meghalaya

2009-07-15

HRISHIKESH ROY, TINLIANTHANG VAIPHEI

body2009
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. M.Z. Ahmed, learned senior counsel appearing for the accused/Appellants. Also heard Mr. N.D. Chullai, learned Public Prosecutor who represents the State. 2. This appeal is presented by 9 accused persons who have been convicted for an offence punishable under Section 376(2)(g) of the IPC and have been sentenced to suffer 10 years imprisonment with a fine of Rs. 1000/- each by the judgment and order dated 30.3.2007 rendered by the learned Judge, Fast Track Court, East Khasi Hills District, Shillong in case No. FTC (S) 43/2003. 3. The prosecution case as revealed by the FIR filed by the PW 11 indicates that on the evening of 18.7.1997 at about 8:30 P.M. while the informant's sister-in-law Ms. Melaris Marngar, aged about 27 years (hereinafter referred to as 'the victim') while returning home was accosted by several persons who caught hold of her and after gagging her mouth, subjected her to criminal assault. The assault took place in Wahktiez Area within Mawpat Village within the Autonomous Council Area. The victim managed to reach home with blood stains on her wearing apparels and she was immediately shifted to the hospital at about 11 P.M. for necessary medical treatment. On the basis of the FIR lodged by the brother-in-law (PW 11) of the victim, the criminal process was set in motion. 4. As the victim after getting a job in a shop in the Bara Bazar market of Shillong, was residing in the house of her sister and brother-in-law at Mawpat Village, soon after the assault news spread, great commotion was raised at Mawpat area and accordingly on the second day after the incident i.e. on 21.7.1997, a "Dorbar Shnong" (Village Public Meeting) of people of Mawpat Village was convened by the Executive Committee of the village. The attendance of all the residents of Mawpat area was compulsory in the said village meeting and information was sought in the gathering of the villagers as to whether, anybody present had any information on the incident which took place on the night of 18.7.1997. The attendance of all the residents of Mawpat area was compulsory in the said village meeting and information was sought in the gathering of the villagers as to whether, anybody present had any information on the incident which took place on the night of 18.7.1997. On such a call, two local boys namely, Arbin Pyngrope (PW 2) and Bisharlang Kharir (PW 5) stood up and narrated that on the date of incident at about 8:30 P.M. when they came out of their house, one lady informed them about some 'halla' coming from the Wahktiez area and when the lady requested the boys, the PW 2 and PW 5 to check on the noise, they went to the Wehktiez area and saw some persons running away to the nearby jungle. They also saw the victim at the place. Then two of the accused persons, namely Arling Kharpran (Appellant No. 2) and Solomon Shylla (Appellant No. 3) who belonged to Mawpat Village appeared at the spot and told PW 2 and PW 5 that they will reach the victim to her home. Accordingly the two witnesses returned home obeying two accused who were known to the witnesses. When this information was revealed, the two Appellants namely Arling Kharpran and Solomon Shylla were asked to step forward before the public gathering. Soon after the two accused took the names of all the other 7 accused, who also were residents of Mawpat Village as also being involved in the crime. After this revelation before the villagers, the accused were kept confined by the villagers and thereafter they were handed over to the police and the police immediately arrested the accused. 5. Following police investigation, charges were filed against all the arrested accused and the case was committed for trial to the Court of the Dy. Commissioner, East Khasi Hills District on 12.2.2001. Subsequently on 13.5.2003, the case was transferred to the Fast Track Court and on 9.6.2003 charge under Sections 376/341/34 of the IPC was framed by the learned trial Court against all the accused persons. The accused pleaded not guilty and accordingly the trial commenced. 6. On behalf of the prosecution, 13 witnesses were presented whereas none was presented for the defence. 7. The accused pleaded not guilty and accordingly the trial commenced. 6. On behalf of the prosecution, 13 witnesses were presented whereas none was presented for the defence. 7. PW 1 is the headman of Mawpat Village and he gave evidence on the public meeting held on 21.7.1997, two days after the criminal assault on 18.7.1997, PW 1 deposed that following a meeting of the Executive Members which discussed the heinous incident of the gang rape on the victim on the night of 18.7.1997, it was decided that a public meeting of Mawpat Villagers be convened on 21.7.1997 to find out, if any one can throw any light on the incident. This witness deposed that during meeting, PW 2 and PW 5 informed that they met the victim when they went to check on some noise and they saw some persons running away from the place of occurrence to the nearby jungle. At that time, the two accused Arling Kharpran (Appellant No. 2) and Solomon Shylla (Appellant No. 3) arrived at the spot and told the two witnesses that they will drop the victim to her home. The two witnesses believing the two accused, as they were elder to them and were co-residents of Mawpat Village, returned to their respective homes. Later when the news of the gang rape became known, the two witnesses came forward in the village Dorbar Shnong and gave information about their encounter with the two accused persons, at the place of occurrence. The witness also deposed that when the names of Arling Kharpran (Appellant No. 2) and Solomon Shylla (Appellant No. 3) was revealed by the two witnesses in the village meeting, the said two Appellants disclosed the names of the other 7 accused as being involved with the crime in presence of all the villagers. Thereafter the villagers confined the 9 accused and after informing the police handed them over to the police. 8. PW 4 is the Secretary of the Mawpat Village and he too deposed about the deliberations in the public meeting held on 21.7.1997. PW 4 confirmed the evidence given, by PW 1 and stated that the accused themselves have implicated each other with the assault on the victim on the night of 18.7.1997. PW 4 also stated that he learnt about their involvement only from the admission of the accused, made during the village meeting. 9. PW 4 confirmed the evidence given, by PW 1 and stated that the accused themselves have implicated each other with the assault on the victim on the night of 18.7.1997. PW 4 also stated that he learnt about their involvement only from the admission of the accused, made during the village meeting. 9. PW 2 and PW 5 were the two witnesses who saw the victim soon after she was assaulted for the first time. These witnesses stated that they asked the victim about where she stays and just when they were thinking of dropping her home, the accused Nos. 2 and 3 arrived at the place of occurrence and told these two witnesses that they will drop the victim home. Since the two accused were Mawpat Villagemen and were known to the two witnesses, the PW Nos. 2 and 5 returned to their respective houses, as they did not suspect the two accused, who were their elders and they assumed that the victim will be escorted by the two accused to her residence. PW Nos. 2 and 5 deposed that in the public meeting held on 21.7.1997 they revealed about the above encounter with the Appellant Nos. 2 and 3 at the place of occurrence. In their cross-examination, these two witnesses stated that as it was dark they did not notice any blood on the victim and it was further stated by them that they did not drop the victim to her house, as the two accused offered to escort the victim to her home. 10. PW 3 was a Doctor serving at Ganesh Das Hospital and was on emergency duties on 19.7.1997. This witness examined the victim and deposed about the following injuries and other particulars noticed on the victim: Perspeculum Examination: A cut injury was seen over the right vagina wall 4" approximately, a slight bleeding from the area. The patient survivor was not wearing the same undergarments at the time of Examination and all clothes have been changed. Exhibit-I is the medical report which I myself have written but I have not signed on the same. The rupture in the Hymen was a recent tear and not an old one. The cut injury seen over the vagina can be caused by a fingernail or an instrument. I have conducted such types of examination in course of my duties. Exhibit-I is the medical report which I myself have written but I have not signed on the same. The rupture in the Hymen was a recent tear and not an old one. The cut injury seen over the vagina can be caused by a fingernail or an instrument. I have conducted such types of examination in course of my duties. The Doctor stated that he was not aware that the victim was earlier taken to other hospital, before she was brought to Ganesh Das Hospital. 11. PW 6 at the relevant was the in-charge of the Nongmynsong Police Out Post and he only submitted the charge sheet of the case. 12. PW 8 was the Investigating Officer (hereinafter referred to as 'the I.O.') of the case. He stated that after receiving information about the rape from PW 11, he reached the Ganesh Das Hospital to record the statement of the victim on 19.7.1997 but he could not do so, as the victim was in a semi unconscious state. He seized the wearing apparels of the victim. The I.O. deposed that the house of the victim's sister is located about 1/2 Kilometer away from the place of occurrence and that the place where the crime took place, was a jungle area. The I.O. further deposed that on 21.7.1997, he received telephonic information from the Headman of Mawpat Village about a village meeting held in connection with the incident and also further information that suspects have been identified and confined by the villagers. Accordingly, the I.O. proceeded to the Village and arrested the 9 persons handed over by the villagers. Then he took the accused persons to the Civil Hospital for collection of their biological samples. Similarly the victim's blood and saliva samples were also obtained by the I.O. on 26.7.1997 after the victim was released from the Hospital on 25.7.1997. The I.O. then arranged for sending the collected biological samples of the accused and the victim along with the wearing apparels of the victim, for forensic examination. 13. PW 7 is D.N. Lyngdoh was serving as a Senior Scientific Officer in the Forensic Science Laboratory, Shillong. The I.O. then arranged for sending the collected biological samples of the accused and the victim along with the wearing apparels of the victim, for forensic examination. 13. PW 7 is D.N. Lyngdoh was serving as a Senior Scientific Officer in the Forensic Science Laboratory, Shillong. This witness stated that after examination of the biological samples collected/obtained from the accused persons and comparing them with the blood and saliva samples of the victim, she was of the opinion that the involvement of the accused persons with the instant crime cannot be ruled out. 14. PW 10 was the victim. Before she started her deposition she said that she does not want to be in the same room with the accused persons as it makes her uncomfortable and embarrassed. Accordingly her evidence was recorded in the Chamber of the Trial Judge and this arrangement was not opposed by the defence counsel. The victim stated that just 2/3 weeks prior to the date of incident, she had come to reside along with her sister and brother-in-law at Mawpat Village, as she secured a job at a shop at Bara Bazar at Shillong. She used to commute back home after concluding her work by the last Bus which reaches Mawpat Village at about 8/8:30 P.M. She stated that on 18.7.1997 after getting down from the bus, while she was proceeding on foot through the jungle area, which was very dark as there was no street light, some boys pulled her backward and after she was gagged with a piece of cloth, she was subjected to gang rape by those persons. She stated that she became unconscious soon after the first person assaulted her and that she suffered great pain as she was unmarried and was a virgin. She further stated that after she regained her senses, two boys arrived at the place of occurrence after hearing her cries and soon there after two other persons also arrived at the spot. The two men who arrived later told the two boys to leave the victim with the assurance that they would reach her home. After the two boys left, the victim was again subjected to rape by the two men along with a few others and she once again became unconscious. The two men who arrived later told the two boys to leave the victim with the assurance that they would reach her home. After the two boys left, the victim was again subjected to rape by the two men along with a few others and she once again became unconscious. She stated that she could not identify any of the persons who assaulted her as because, it was dark when the assault was made and that she was new to the place and she did not know any one in the area. She also deposed that later, she learnt that the persons who violated her were from the Mawpat Village. The victim could not indicate exactly how many persons assaulted her. She also stated that she struggled to free herself but she failed and that during the assault, her mouth was gagged and therefore, although she was crying and praying, no sound was coming out of her mouth. 15. PW 11 is the brother-in-law of the victim in whose house the victim was temporarily residing; In his deposition PW 11 stated that when victim was delayed at her work place, she was instructed to stay back with other relatives at 'Langkyrding'. Accordingly, although she was late on 18.7.1997, they thought that she had stayed back with her relatives at Langkyrding and as such unsuspectingly, they were sleeping at the time, when the victim knocked on their doors at night. When PW 11 and his wife opened the door, they saw that the dress and the legs of the victim were drenched with blood and on being questioned, the victim could barely inform that she had been raped and she immediately fainted. PW 11 immediately searched for a vehicle to take her to Hospital and that very night she was taken to the Mission Hospital. In the Mission Hospital the victim was kept for the night and as it was a police case, the Authorities of the Mission Hospital asked the PW 11 to take the victim to the Civil Hospital. Accordingly, the victim was taken to Civil Hospital from where, she was again referred to Ganesh Das Hospital and admitted there, till she was released on 25.7.1997. Accordingly, the victim was taken to Civil Hospital from where, she was again referred to Ganesh Das Hospital and admitted there, till she was released on 25.7.1997. PW 11 stated that he lodged the FIR on 19.7.1997 at Nongmynsong Police Out Post and that he also was the seizure witness of the Exhibit-1, i.e. the green skirt worn by the victim at the time of the assault. PW 11 was present in the village meeting held on 21.7.1997 and he deposed that in the Mawpat Village meeting itself, the accused persons admitted their involvement with the crime and thereafter all the 9 accused persons were taken away by the police. In his cross-examination this witness stated that the place of occurrence is about 10 minutes walking distance from his house and it would not be possible to hear any shout or cry coming from the place of occurrence from his house. He stated that when the victim knocked on their door at night on 18.7.1997, soon after she was admitted into the house, she just collapsed inside the house. He also stated that although the victim stated that she was raped by several persons, she could not specify the exact number of persons who ravished her. 16. PW 12 is the sister of the victim and she also supported the version given by her husband (PW 11). 17. PW 13 is the Magistrate who recorded the statement of the victim. The statement recorded by the Magistrate is Ext. 9 and the said recording tallies with the evidence given by the prosecutrix and other witnesses. 18. PW 9 the Director of the Central Forensic Science Laboratory at Calcutta was the expert presented by the prosecution to connect the accused with the crime. He has been working in the field of DNA Finger Printing since 1987 and had reported in more than 700 cases relating to murders, sexual assaults and paternity testing. The PW 9 stated that from examination of GENO Typing of the various exhibits, it was found that the vaginal swab of the victim matched the DNA finger prints of 4 of the accused, namely Baphira Kharkongor, Arning Kharpran, Frencis Passah and Elas Kharkongor (Accused Nos. 1, 2, 5 and 9) and that the semen positive stains on the peticoat i.e. Exhibit 2A, 2B and 2 C contains the DNA profiles of 10 individuals including that of the victim. 1, 2, 5 and 9) and that the semen positive stains on the peticoat i.e. Exhibit 2A, 2B and 2 C contains the DNA profiles of 10 individuals including that of the victim. In his report PW 9 mentioned that the blood samples obtained from all the 9 accused persons matched with the blood samples on the peticoat worn by the victim at the time of assault and the expert opined that the probability of the biological samples of the 9 accused matching with the blood sample found on the wearing apparel of the victim, is 1 in 2 lakhs. This witness also stated that DNA test has been known as the most powerful and conclusive test in cases of sexual assaults and paternity testing and that such DNA Testing procedure is universally accepted in cases of sexual assaults. The material portions of the evidence of PW 9, which are of relevance are extracted herein below: From the examination of GENO Typing for various Exhibits it was found that the vagina swab contains mixed DNA finger print of five (5) individuals including the victim, while the Semen Positive stains on the Peticoat i.e. Exhibit 2A, 2B and 2C contains DNA profile of 10 individuals including the victim. Based upon my observation, I have mentioned in my conclusion on the report that on the basis of DNA profile, contribution of Biological specimen from the nine controlled samples said to be of the nine accused no one can be excluded. The vaginal swab is found that DNA profile of said Accused B. Kharkongor and P. Kharkongor and F. Passah and A, Kharpran are present in the vaginal swab meaning thereby that their Male body fluid should be present in the vaginal swab. In the material Exhibit -- I, which is the peticoat and our marking is 2A, 2B and 2C contains or matches with the DNA profile of Exhibit-5, 7, 9, 11, 13, 15, 17, 19 and 21. As such my conclusion is that the individual who are source of these Exhibits cannot be excluded as source contributing Biological Specimen on Exhibit-1 four persons and on Exhibit 2A, 2B and 2C all the nine sources. In these cases the probability of these nine sources matching with the individuals randomly selected from the area is 1 in two lakhs. As such my conclusion is that the individual who are source of these Exhibits cannot be excluded as source contributing Biological Specimen on Exhibit-1 four persons and on Exhibit 2A, 2B and 2C all the nine sources. In these cases the probability of these nine sources matching with the individuals randomly selected from the area is 1 in two lakhs. In my report where I mentioned for additional Geno Testing to give higher probability values is not essential in this case, as the suspects are known. DNA Test is known as the most powerful and conclusive Tests in cases of sexual assault and paternity testing. DNA Test have been accepted around the world. Till date and around 5 million DNA cases have been presented and the Techniques accepted. 19. Mr. M.Z. Ahmed, learned Senior counsel appearing for the Appellants submits that the conviction of the Appellants is not sustainable as there has been no direct evidence to implicate the accused with the crime. The learned Counsel submits that there are discrepancies in the evidence given by the victim as she couldn't even state how many persons had assaulted her nor she was able to identify any of the persons who made the criminal assault. 19.1. The learned Counsel further submits that evidence of experts introduced through PW 9 relating to DNA Finger Printing cannot be made the basis for sustaining the conviction of the accused in as much as, no conclusive guilt of the accused could be established from the expert evidence. Mr. Ahmed also refers to the evidence of PW 7, the senior Scientific Officer of the Forensic Science Laboratory, Shillong to state that even her evidence is not conclusive and under such circumstances it is contended that in the absence of any other material evidence to connect the accused with the crime, their conviction ought not to be affirmed by the Appellate Court. It is also contended that none of the accused have admitted their involvement with the crime even in the public meeting held on 21.7.1997 and under such circumstances there cannot be any justification for sustaining the conviction of the Appellants. 20. Mr. N.D. Chullai, learned Public Prosecutor on the other hand submits that the evidence of PW Nos. It is also contended that none of the accused have admitted their involvement with the crime even in the public meeting held on 21.7.1997 and under such circumstances there cannot be any justification for sustaining the conviction of the Appellants. 20. Mr. N.D. Chullai, learned Public Prosecutor on the other hand submits that the evidence of PW Nos. 2 and 5 clearly indicates the presence of the accused/Appellants No. 2, Arling Kharpran and accused/Appellant No. 3, Solomon Shylla at the place of occurrence and how they misled the two witnesses by stating that they will escort the victim to her home. 20.1. The learned Counsel further submits that from the evidence of PW 4 and PW 11, it is clearly revealed that all the accused have implicated each other and admitted their guilt in presence of all the villagers of Mawpat Village in the public meeting held on 21.7.1997 and therefore, it would not be correct to state that there is no evidence at all, to connect the Appellants with the crime. 20.2. The learned Public Prosecutor further submits that the evidence of the Doctor (PW 3) clearly records the injuries and bleeding on the private parts of the victim when she was examined in the hospital a day after incident. The said medical evidence coupled with the evidence of PW 11 and PW 12, who saw the victim smeared in blood soon after she was assaulted, considered along with the evidence of the PW 9, clearly confirms the involvement of the accused with the crime. 20.3. Mr. Chullai further submits that the evidence of the witnesses, particularly of the victim is consistent with the medical evidence and considering the evidence of other material witnesses, the judgment of the Trial Court is liable to be sustained. 21. We have carefully scrutinized the evidence on record. That the victim was subjected to brutal gang rape on the night of 18.7.1997 is beyond dispute. The issue is whether the learned Trial Court was correct in concluding that the Appellants were the persons who assaulted the victim on the night of 18.7.1997. 22. In this case, the victim could not identify any of the accused persons nor she could give the exact number of persons who assaulted her although she deposed that several persons were involved. The question is whether the victim should be disbelieved on this count. 22. In this case, the victim could not identify any of the accused persons nor she could give the exact number of persons who assaulted her although she deposed that several persons were involved. The question is whether the victim should be disbelieved on this count. In our view the prosecutrix evidence has to be examined in the context of the trauma and suffering that she suffered at the time of assault and even thereafter. We must also bear in mind that the victim moved into the residence of her sister at Mawpat Village only a few days prior to the assault and was unfamiliar with the area. She did not know anybody from the locality, barring perhaps her own sister and brother-in-law. Under such circumstances, for the victim not to be able to identify any of the accused would be quite natural. It would also be unrealistic in our opinion to expect a gangrape victim to keep count of the number of people who ravished her. Considering the traumatic experience and the fact that several men assaulted her in a dark jungle night and that she lost her consciousness, it is but natural that she could not say how many persons were involved in the crime. The victim was a new comer to the area and she must have been severely disoriented and traumatized by the brutal assault and that too in a jungle area, which was absolutely dark. Nevertheless the victim has clearly deposed that she was criminally assaulted by several persons and she also stated the after she regained consciousness after the first assault, she was subjected to a second round of assault, which might be a repeat assault by some of the accused. We find her evidence to be natural and trustworthy and also consistent with evidence of other witnesses on all material particulars. 23. The evidence of PW Nos. 2 and 5, the two local boys of Mawpat Village is also very significant. These two witnesses saw the accused/Appellant No. 2, Arling Kharpran and accused/Appellant No. 3 Solomon Shylla at the place of occurrence offering to escort the victim to her residence. Because of the darkness, these two witnesses did not notice the blood on the victim and her clothes and only because they did not suspect anything was amiss and was reassured by the accused/ Appellant Nos. Because of the darkness, these two witnesses did not notice the blood on the victim and her clothes and only because they did not suspect anything was amiss and was reassured by the accused/ Appellant Nos. 2 and 3, they had no inkling of the kind of serious trouble that the victim actually was in, on the night of 18.7.1997. From their revelation of the names of two of the accused in the public meeting on 21.7.1997, the names of the other accused also came to light and it is seen from the evidence of the PW Nos. 4 and 11 who were present in the meeting that, all the accused implicated each other with the crime in presence of their own kith and kin and their own village people. 24. Thereafter the biological samples of the accused were collected to match them with the Exhibit-I - vaginal swab; - Exhibit 2A, 2B and 2C - blood and semen stained skirt (peticoat) worn by the victim; and the Exhibit 3, the victim's blood samples. The DNA matching of the said exhibits with the collected biological exhibits from the accused showed that all the accused could be perpetrators of the crime. The semen positive stains found on the skirt (peticoat) worn by the victim contains the DNA profile of all the 9 accused/Appellants. 25. No doubt, merely on the basis of the opinion of the DNA experts, it may not be proper for the Court to convict any accused. But in the instant case we find that the evidence of the experts corroborate the evidence given by the two witnesses (PW Nos. 2 and 5) who were present at the place of occurrence and met the victim just after the victim was assaulted for the first time and before she was assaulted for the second time. The evidence given by the victim and her sister and brother-in-law (PW Nos. 12 and 11) are also available. The brutal violation of the victim is also established through the medical evidence of PW 3, who subjected the victim to medical examination. Of course PW 3 examined the victim after considerable delay in the Ganesh Das Hospital and at a stage where the victim had already changed her clothes and she was attended to earlier in the Missions Hospital and the Civil Hospital. Even then the brutal assault suffered by the victim was evident. Of course PW 3 examined the victim after considerable delay in the Ganesh Das Hospital and at a stage where the victim had already changed her clothes and she was attended to earlier in the Missions Hospital and the Civil Hospital. Even then the brutal assault suffered by the victim was evident. The evidence of the I.O. reveals that even 24 hours after the assault and after receipt of medical attention in Mission Hospital, Civil Hospital and Ganesh Das Hospital, the victim was not in a position to make a statement to the police, as she was in a semi-conscious state. All these facts clearly indicate that the victim was severely assaulted on the night of 18.7.1997 by several persons. 26. We can't also ignore the extra judicial confession of the accused before the public on 21.7.1997 as is evidenced through PW Nos. 4 and 11. After PW Nos. 2 and 5 named the two accused namely Arling Kharpran and Solomon Shylla as the persons whom they met at the place of occurrence, these two accused named the others and eventually all the accused named each other before all the villagers of Mawpat Village. There was a spontaneous response not forced by anyone and was obviously made at the spur of the moment. The response of the accused and the admission by them before a large number of their own clan members and neighbours, appears to be a natural response and since such extra judicial confession made by the accused is found corroborated by the medical evidence, the DNA evidence and also the evidence of PW Nos. 2 and 5, we feel that the said extra judicial confession of the accused and their conduct in the meeting are relevant factors, which cannot be ignored, while taking a decision on their appeal. The village meeting on 21.7.1997 was a solemn occasion and once names of two of the accused was revealed, it would be practically impossible for the others involved to utter the untruth in front of their family and neighbours, as they would have been absent from their homes and usual places, during the time when the assault took place. We may also note that none present in the village meeting on 21.7.1997 could have had any reason to falsely implicate the accused and in fact no such suggestion has also been made by the defence. 27. We may also note that none present in the village meeting on 21.7.1997 could have had any reason to falsely implicate the accused and in fact no such suggestion has also been made by the defence. 27. It is also significant to note^e response of two of the accused Appellant namely Francis Passah and Allan Myrchiang to question No. 2, which is extracted herein below, during their examination under Section 313 Cr.P.C. 2. PW 1 and PW 4 also stated that on 21.07.1997 a Dorbar Shnong (Public Meeting) was held regarding the incident and that in the Meeting on the narration of the incident by A. Pyngrope and B. Kharir, the names of all of you Accused in this case who were on the night of the Crime was brought out by Accused A. Kharpran and S. Shylla. What do you have to say? In response to the above question, accused Francis Passah (Appellant No. 5) responded by saying "it is a fact". Similarly accused Allan Myrchiang (Appellant No. 4) Respondent by saying "it is true. 28. Having regard to the above discussions, we are of the considered opinion that the Appellants have been correctly convicted and that no interference with the impugned judgment and order is warranted and accordingly we affirm the judgment of the learned Trial Court. 29. At the conclusion of the dictation of the judgment, Mr. Ahmed, learned Counsel for the Appellants submitted that a lesser sentence be inflicted considering the age and the fact that some of the accused being the bread earners of the family. But having considered the serious nature of the crime, where the innocent victim was subjected to gang rape by the accused, we find no justification to award a lesser sentence than the one awarded by the learned Trial Court, for their conviction under section 376(2)(g) of the IPC. 30. We are told that accused Solomon Shylla (Appellant No. 3) has died in Jail on 23.12.2008. Accordingly the present appeal, in so far as the accused/Appellant No. 3 is concerned, stands abated. 31. The appeal stands dismissed in terms of the above order.