JUDGMENT I.A. Ansari, J. 1. By judgment and order, dated 14.03.2007, passed, in Sessions Case No. 02/2000, the learned Sessions Judge (Fast Track Court), Eastern Zone Namsai, has convicted the two accused persons, namely, Baiju Baby and Raju Chetri under Section 376 IPC and sentenced each one of them to undergo rigorous imprisonment for seven years with fine of Rs. 3,000/- and, in default of payment of fine, to undergo simple imprisonment for a further period of three years. A reference has accordingly been registered by the High Court in terms of the provisions of Section 30(1) of the Assam Frontier (Administration of Justice) Regulations, 1945. Aggrieved by his conviction and the sentence passed against him, one of the convicted persons, namely, Baiju Baby, has preferred an appeal, which has given rise to Criminal Appeal No. 03(AP)/2007. No appeal has, however, been preferred by the other convicted person. As both 3/4 the reference as well as the appeal 3/4 have arisen out of the judgment and order, dated 14.03.2007, aforementioned, we propose to dispose of the reference as well as the appeal by this common judgment and order. 2. We have heard Mr. P.K. Tiwari, learned Counsel for the Appellant, and Mr. K. Jini, learned Counsel, appearing for the accused, who has not preferred any appeal. We have also heard Mr. R.H. Nabam, learned Public Prosecutor, for the State. 3. As the entire case against the two persons, who stand convicted, revolves around, broadly speaking, the testimony of the prosecutrix, her description of the alleged occurrence has become the foundation of the prosecution's case. It is, in the peculiar facts and circumstances of the present case, appropriate to consider her evidence to appreciate as to what really is the case of the prosecution. 4. The alleged occurrence, as unfolded by the evidence of the prosecutrix, namely, B.K. (PW1), who is wife of L.K. (PW2), may, in brief, be described thus: (i) PW1 lives with her husband, who remains, generally, idle at his home. At some distance from their house, PW1 has taken, on rent, a house, which consists of two rooms. While one part of the room is occupied by PW1, the other part is occupied by Anr. female person, namely, SM. PW1, admittedly, sells locally made liquor from her said rented room. At some distance from their house, PW1 has taken, on rent, a house, which consists of two rooms. While one part of the room is occupied by PW1, the other part is occupied by Anr. female person, namely, SM. PW1, admittedly, sells locally made liquor from her said rented room. In fact, in most of the houses in the area, where PW1 carries on the business of sale of Apong (i.e., local beer), selling of liquor is the prime source of livelihood. Most of these houses do not enjoy supply of electricity and, therefore, use candles, etc, for lighting the rooms. (ii) Describing the occurrence, PW1 has deposed that on 20.10.99, at about 2100 Hrs, while she was in her said rented room at Kicher Line, Tezu, two persons entered into her room, dragged her, by holding a flock of her hair from the back side, to the bushes at a distance of about 80-90 meters from her room and though she tried to shout, she had almost lost her senses and when she regained her senses, she found herself lying in the bush. One of the accused, according to PW1, held her throat and the other one was holding a dao, which she has identified as M. Ext.1. What is, however, important to note, in the evidence of PW1, is that the dao, held by one of the accused, was shining and, hence, out of fear of her life, she had to remain si lent. (iii) Proceeding with the description of the occurrence, PW1 has also deposed that the two accused, thereafter, threw away her wearing apparels, namely, M. Ext.2 (Bra), M. Ext.3 (Salwar) and M. Ext.4 (Torn Bra), and the Nepali Boy committed rape on her twice while the other accused committed rape on her only once. PW 1 has also deposed that she heard the Nepali Boy (accused Raju Chetri) saying, while the other accused was standing far away, 'This woman should have been finished" and, then, both the accused left the place of occurrence. (iv) PW1 has further deposed that she came back from the place of occurrence to her rented house and, thereafter, she straightaway went to her own residence. (iv) PW1 has further deposed that she came back from the place of occurrence to her rented house and, thereafter, she straightaway went to her own residence. It is in the evidence of PW1 that while her husband used to stay in their residential house, she used to be in the said rented house, where she used to sell local liquor, and, on the night of the occurrence, since customers had been continuously drinking Apong, she had to stay there until the time the incident took place. 5. We have very cautiously and closely scrutinized the evidence given by PW1 and what we find is that her evidence 3/4 (a) that she is in the business of selling locally made liquor from the rented room as aforementioned, (b) that she was dragged from her said room to the bushes by two persons, (c) that one of the persons was holding a dao in his hand, which was shining at night, and the other person, who was a Nepali, subjected her to rape twice, while the other person committed rape on her only once and, thereafter, (d) the Nepali boy made a statement to the effect that this woman (i.e., PW1) should have been finished, (e) that both the persons aforementioned left the place of occurrence, (f) whereupon she, first, came to her rented house and, then, went to her own residence 3/4 have remained completely undisputed and unchallenged. We see, therefore, no reason to doubt the veracity of the evidence given by PW1 to the effect that she had been subjected to rape by two persons as has been described by her. 6. What is, however, of paramount importance to note, while considering the above aspects of the evidence of PW1, is that the defence, while not disputing, during cross-examination of PW1, that she had been subjected to rape, merely denied that the two accused had committed rape on her. In short, thus, the defence case, while cross-examining PW 1, was that PW1 might have been subjected to rape, but the accused were not the ones, who had committed rape on her. In other words, the fact that PW1 was subjected to rape by two men was not disputed by the defence, when PW1 was put to cross-examination by them; what was denied was that the two accused were the ones, who had committed rape on PW1. 7. In other words, the fact that PW1 was subjected to rape by two men was not disputed by the defence, when PW1 was put to cross-examination by them; what was denied was that the two accused were the ones, who had committed rape on PW1. 7. The inference that PW1 had been subjected to rape, as described by her, gets further strengthened from the fact that PW6 (Dr. C.M. Jha), who had, admittedly, examined PW1, on 21.10.99 (i.e., on the following day of the alleged occurrence), found as under: Abrasion on the right forearm on the right posterior and interior side. Interior measuring 3 1/2 inch approx. On the posterior side also, the abrasion measured 3 1/2 inch. Superficial abrasion on the upper superficial on the left side of the neck, abrasion on the back of chest wall, minor abrasion on the upper and lower back of the chest, abrasion 1/2 inch length on the amberoid side of right side of wrists bruises 2 inch on the left side kit. All the injuries seem to have been inflicted not by self, but someone else. Injuries were caused by weapon of the offence of the nature of hard and rough and blunt object. The above injuries may be signs of struggles in a sexual assault, but I am not definite. During the time of examination, the victim was under menstruation. The lady was brought to me on the next day. The age of the lady was approximately 26 years of age and was already married. The above injuries will not appear in case of consent sexual intercourse. 8. From the findings of the doctor (PW6), what surfaces is that there were, indeed, abrasions and bruises found on various parts of the body of PW 1 including her fore-arms, neck, back of the chest wall, anterior side of the right wrist and left side of the cheek. 8. From the findings of the doctor (PW6), what surfaces is that there were, indeed, abrasions and bruises found on various parts of the body of PW 1 including her fore-arms, neck, back of the chest wall, anterior side of the right wrist and left side of the cheek. When the injuries, so found, on the person of PW1, are taken into account along with her testimony, given at the trial, it becomes clear that the medical evidence on record substantially supports the version of the occurrence given by PW1 that she had been forcibly subjected to sexual intercourse by two persons in the manner as she has described by her, particularly, when the doctor has deposed (and we have no reason to doubt) that the injuries indicated above will not appear if a woman undergoes sexual intercourse with her consent inasmuch as the injuries found on the person of PW1 were not self inflicted. 9. What is, therefore, not difficult to conclude, unless we find some other reason to take a view different from what we are, now, taking, is that PW1 had, indeed, been subjected to sexual intercourse by two men in the manner as has been described by her. In fact, the defence did not even deny, while cross-examining PW1, that she had been forcibly subjected to sexual intercourse as had been described by her. While cross-examining PW1, what the defence had denied, if we may repeat, is that the accused had not committed rape on her. 10. The pertinent question, therefore, remains as to who those two male persons were, who had subjected PWJ to rape. It is, noteworthy, in this regard, that in Kanta Prashad v. Delhi Administration reported in AIR 1958 SC 350 , the Apex Court had made it clear that failure to hold a TIP would not make the evidence of identification, at the trial, inadmissible. However, the weight to be attached to such identification would be for the court of fact to decide and that it is prudent to hold TIP with respect to witnesses, who did not know the accused before the occurrence. However, the weight to be attached to such identification would be for the court of fact to decide and that it is prudent to hold TIP with respect to witnesses, who did not know the accused before the occurrence. The relevant observations, made in Kanta Prashad (supra), run as follows: It would no doubt have been prudent to hold a test identification parade with respect to witnesses who did not know the accused before the occurrence, but failure to hold such a parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification would be a matter for the Courts of fact and it is not for this Court to reassess the evidence unless exceptional grounds were established necessitating such a course. 11. Having taken into account the decisions in Kanta Prasad (supra), Harbhajan Singh v. State of Jammu and Kashmir reported in AIR 1975 SC 1814 , Jadunath Singh v. State of U.P. reported in AIR 1971 SC 363 and some other authorities, the Apex Court held, in George and Ors. v. State of Kerala and Anr. reported in AIR 1998 SC 1376 , as follows: It cannot be denied however that though not fatal, absence of the corroborative evidence of prior identification in a T.I. parade makes the substantive evidence of identification in Court after a long lapse of time a weak piece of evidence and no reliance can be placed upon it unless sufficiently and satisfactorily corroborated by other evidence. 12. From what have been observed in George (supra), it is clear that though absence of identification parade does not make the evidence of identification, at the trial, inadmissible, the court has the duty to ascertain as to how far the evidence of identification of the accused, at the trial, can be safely relied upon. In short, while the evidence of identification of an accused, at a trial, is admissible and substantive piece of evidence, it will depend on the facts of a given case as to whether or not such a piece of evidence can be relied upon as the sole basis of conviction of an accused. The rule of prudence may urge a court, in a given case, to look for some corroborative piece of evidence. 13. The rule of prudence may urge a court, in a given case, to look for some corroborative piece of evidence. 13. During the stage of investigation of a crime, the investigating agency is required to hold identification parade for the purpose of enabling the witness to identify the person alleged to have committed the offence, particularly, when such person was not previously known to the witness or the informant. The absence of test identification may not be fatal if the accused is known or sufficiently described in the complaint leaving no doubt in the mind of the court as regards the involvement of the accused. Identification parade may also not be necessary in a case, where the accused persons are arrested at the spot. The evidence of identification of an accused person, for the first time, at the trial, is, from its very nature, inherently of a weak character. The Supreme Court, in Budhsen v. State of U.P. reported in (1970) 2 SCC 128 , held that the evidence of identification of an accused, at the trial, in order to carry conviction, should, ordinarily, clarify as to how and under what circumstances the complainant or the witness came to pick out the particular accused person and the details of the part, which the accused allegedly played in the crime, in question, with reasonable particularity. In such cases, test identification is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused, who are strangers to them. There may, however, be exceptions to this general rule, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely without such or other corroboration. Though the holding of identification proceedings are not substantive evidence, yet they are used for corroboration and to enable the Court to believe that the person, brought before the court, was the real person involved in the commission of the crime. The identification parade, even if held, cannot, in all cases, be considered as safe, sure and trustworthy evidence on which conviction of an accused can be sustained. It is a rule of prudence, which is required to be followed in the cases, where the accused is not known to the witness or the complainant. See State of H.P. v. Lekh Raj and Anr. It is a rule of prudence, which is required to be followed in the cases, where the accused is not known to the witness or the complainant. See State of H.P. v. Lekh Raj and Anr. reported in 2000 (1) SCC 247 . 14. In the case of Malkhan Singh and Ors. v. State of M.P. reported in (2003) 5 SCC 746 , the Apex Court has clarified that the T.I.P. is not substantive piece of evidence and to hold the TIP is not even the rule of law, but a rule of prudence so that the identification of the accused inside the court-room, at the trial, can be safely relied upon. In Malkhan Singh (supra), the Court, while observing that identification of an accused in a court should, as a rule of prudence, be preceded by a TIP, has, in no uncertain words, clarified that this rule of prudence is, however, subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can, without such TIP or other corroboration, safely rely. The Apex Court has also clarified, in Malkhan Singh (supra), that the identification parades belong to the stage of investigation and there is no provision in the Code of Criminal Procedure, which obliges the investigating agency to hold, or confers a right upon the accused to claim, a test identification parade; the TIPs do not, points out the Apex Court in Malkhan Singh (supra), constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure and, hence, failure to hold a test identification parade would not make inadmissible the evidence of identification in court, though the weight to be attached to such identification should be a matter for the courts of fact to determine. Asserted the Apex Court, in Malkhan Singh (supra), that in appropriate cases, a Court may accept the evidence of identification even without insisting on corroboration. Kanta Prashad v. Delhi Administration reported in AIR 1958 SC 350 : 1958 Cri LJ 698; Vaikuntam Chandrappa and Ors. v. State of Andhra Pradesh reported in AIR 1960 SC 1340 : 1960 Cri LJ 1681; Budhsen and Anr. Kanta Prashad v. Delhi Administration reported in AIR 1958 SC 350 : 1958 Cri LJ 698; Vaikuntam Chandrappa and Ors. v. State of Andhra Pradesh reported in AIR 1960 SC 1340 : 1960 Cri LJ 1681; Budhsen and Anr. v. State of U.P. reported in AIR 1970 SC 1321 : 1970 Cri LJ 1149 and Rameshwar Singh v. State of Jammu and Kashmir reported in (1971) 2 SCC 715 : AIR 1972 SC 102 : 1972 Cri LJ 15. 15. What emerges from the above discussion is that the identification of an accused inside the court-room, at a trial, is an admissible piece of evidence and because such identification of an accused is admissible in evidence, such evidence of identification is a substantive piece of evidence. It is, therefore, permissible to rely on such piece of evidence as a rule of law; but the rule of prudence demands that in the absence of a TIP having been held properly and in accordance with law, the conviction of an accused should not be based entirely on his being identified, at the trial, by a witness, who did not know the accused. 16. In support of the contention of the accused-Appellant, Baiju Baby, that the evidence, with regard to identification of the accused-Appellants, is valueless inasmuch as the same had not preceded by any TIP, what needs to be pointed out is that in Boota Singh's case (supra), the High Court, relying on the Supreme Court's decision in Budhsen v. State of U.P. reported in (1970) 2 SCC 128 , had held that there can be no two opinions about the fact that the evidence of identification is a very weak type of evidence and should be closely scrutinized before reliance is placed thereon. Not agreeing with such a broad proposition of law, which the High Court had set in Boota Singh's case (supra), by relying, upon Budhsen's case (supra), the Apex Court explained its decision, in Budhsen's case (supra), by pointing out that there can be no doubt that in Budhsen's case (supra), the Court had held that where an accused is not known to the witness from before, there is no TIP held and yet the accused is identified, for the first time, in the Court, such identification is valueless. 17. Referring to its observations, earlier made, in Budhsens's case (supra), which Mr. 17. Referring to its observations, earlier made, in Budhsens's case (supra), which Mr. Tiwari relies upon, that: as a general rule, the substantive evidence of a witness is a statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part, which the accused played in the crime in question with reasonable particularity. The purpose of prior test identification, therefore, seems to be to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceeding. The Apex Court has explained, in Boota Singh (supra), that while holding, in Budhsen (supra), that evidence of identification, for the first time, at the trial, is of a weak character, what the Court really meant was that where the evidence of a witness, in the Court, is not tested by prior identification parade, not much reliance can be placed on such evidence. The Supreme Court, in Boota Singh (supra), has further pointed that Budhsen (supra) does not lay down a rule of universal application and that where a witness, who had identified an accused at a TI Parade held by a Magistrate after observing all the essential formalities and taking the necessary precautions, again, identifies the accused in Court too, the evidence of identification can be believed unless the evidence of witness suffers from some other infirmity. Moreover, the evidence of identification becomes stronger if the witness has an opportunity of seeing the accused not for a few minutes, but for some length of time, in broad day light, when he would be able to note the features of the accused more carefully than on seeing the accused in a dark night for a few minutes. 18. Moreover, the evidence of identification becomes stronger if the witness has an opportunity of seeing the accused not for a few minutes, but for some length of time, in broad day light, when he would be able to note the features of the accused more carefully than on seeing the accused in a dark night for a few minutes. 18. To put it a little differently, what the decision, in Boota Singh (supra), lays down is that the identification of an accused by a witness, at the trial, is really substantive piece of evidence and even if such identification has not been tested by a prior identification parade, a court may still rely on such a piece of evidence of identification if the court is satisfied that the witness had the time and the opportunity of seeing and noticing the features of the accused and, hence, when a witness had only fleeting glance of an accused or had not seen the accused due to darkness or dim light and not for sufficient period of time to have noticed the features of the accused, such a piece of evidence may be unsafe to rely upon; but there is no law that identification of an accused by a witness, for the first time, at the trial, cannot, or must not, in all circumstances, be relied upon. Therefore, the value of identification of an accused by a witness, at a trial, depends on the facts of a given case. 19. Bearing in mind the position of law with regard to the identification of an accused, at the trial, by a victim, as discussed above, when we revert to the case at hand, what attracts our attention is that PW1 admits that since she had been selling locally made liquor, many customers used to visit her rented room, where there was no electricity. It is also in the evidence of PW1 that since there was no electricity and only a candle had been kept lit, she could not properly see the visiting customers. It is also in the evidence of PW1 that since there was no electricity and only a candle had been kept lit, she could not properly see the visiting customers. In fact, making it clear that the customers or those, who had been entering into her room, could not have been properly seen by PW1 becomes clear, when we find that PW1 has, in no uncertain words, deposed that since it was quite dark and only candle had been kept lit, the light was so dim that she could not identify the customers or even the accused persons. 20. It is equally important to bear in mind that PW1 has clarified, in her cross-examination, that she came to know the accused persons only after the incident. There is absolutely nothing in the evidence on record, as clearly conceded by the learned Public Prosecutor, to show as to how, when and where PW1 happened to recognize and/or identify the two accused persons, who had faced the trial and who, now, stand convicted as the persons, who had subjected PW1 to rape. Though PW1 has identified the two accused persons, in the Court by face, the fact remains that since according to the candid admission of PW1 herself, the light was wholly insufficient for her to recognize the accused persons and when the identification of the two accused, at the trial, had not been preceded by any Test Identification Parade and, particularly, when it is not even known as to when, how and where PW1 had, for the first time, recognized and/or identified the two accused persons, it is impossible to give any credence to her evidence that the two accused persons, who have faced the trial, were the ones, who had committed rape on her. 21. Notwithstanding the weakness, with which suffers the testimony of PW1, as regards the identification of the two accused, at the trial, what is, now, extremely important to note is that the evidence on record does not disclose that PW1 has any reason to falsely make accusations of rape having been committed on her. Neither any enmity against the two accused persons has been alleged or proved. Moreover, in a case of rape, the evidence of the prosecutrix cannot be treated as the evidence of an accomplice. Her evidence, therefore, does not, as a rule of law, requires corroboration. Neither any enmity against the two accused persons has been alleged or proved. Moreover, in a case of rape, the evidence of the prosecutrix cannot be treated as the evidence of an accomplice. Her evidence, therefore, does not, as a rule of law, requires corroboration. No particular number of witnesses is required to prove a fact. See Marwadi Kishor Paramanand and Anr. v. State of Gujrat reported in (1994) 4 SCC 549 and Lallu Manjhi and Anr. v. State of Jharkhand reported in (2003) 2 SCC 401 . It is really not the number of witnesses, but the quality of the evidence given by a witness, which determines the truth or falsity of a fact deposed to by the witness. There is no impediment in law in basing conviction of an accused on the sole testimony of a witness, more particularly, of a person, who claims to be a victim of rape, because rape would not be, ordinarily, committed in the glare of the public or in the presence of persons not involved in the commission of rape. In short, there is no legal impediment in upholding the conviction of the present two accused persons on the sole testimony of the prosecutrix (PW1) provided that we have legally permissible reasons to believe and hold that the present two accused persons were the ones, who had committed rape on PW1. 22. What, therefore, remains, and remains to be determined, is the identity of the two men, who had committed the heinous act. 23. Our quest for an answer to the question as to who the two men were, who had subjected PW1 to rape, brings us to the evidence of Sarki Lama (PW3). According to the evidence of this witness, he occasionally takes liquor and, on 20.10.1999, when he was returning from theatre hall at about 9 pm, his temptation to have some liquor took him to Kicher Line and when he came to tin-ali (tri-junction), he came across a man and asked him, "Who are you", but, without responding to his query, the man went away. In his cross-examination, PW3 has clarified that he talked to the man, whom he had so met, because the man appeared to be an army personnel, and he, therefore, wanted to talk to the man, whose name he (PW3) did not know at the relevant point of time. In his cross-examination, PW3 has clarified that he talked to the man, whom he had so met, because the man appeared to be an army personnel, and he, therefore, wanted to talk to the man, whose name he (PW3) did not know at the relevant point of time. PW3 has explained, in his evidence, that when he was talking to the unknown man, whom he has so met in the Kitcher Line, PW1 and her husband (PW2) focused their torch-light on his (PW3's) face. Though PW3 had deposed, in his examination-in-chief, that he was caught by the husband of the victim (i.e., PW 1) and, then, he (PW1) left the spot, his cross-examination shows that after the torch-light had been focused on his face, PW3 went to the place, where the victim (i.e., PW1) used to sell liquor, but at that point of time, the victim and her husband did not say anything to him. PW3 has further deposed that he took one bottle of rice beer and went away to his home. 24. It is in the evidence of PW3 that the Officer-in-Charge along with one policeman came to his residence and told him that a compliant had been lodged against him, whereupon he remained in the custody of the police, for three days, on suspicion that he had committed the offence, though he had denied, and when police asked him as to who had committed the offence, he had simply told police that one person, probably a Madrasi, or a person, who looked like army man, was roaming, on the road, on the night of the incident. It is also in the evidence of PW3 that when he was in the police lock-up, the police brought there accused Baiju Baby after about three days of the occurrence and he (PW3), then, told the police, pointing out to accused Baiju Baby, that he (i.e., accused Baiju Baby) was that Madrasi boy, whom he (PW3) had met on the night of the occurrence. 25. 25. Close on the heels of the evidence of PW3 is the evidence of PW2 (husband of the alleged victim), whose evidence is that on 20.10.1999, his wife came back from her rented house and informed him that she had been subjected to rape by two men and, on being so informed, he went to the place of occurrence and collected the Bra (Material Ext.2), Salwar (Material Ext.3) and Tom Bra (Material Ext.4) and, then, came home. At a subsequent stage of his evidence, PW2 has clarified that he does not remember the date of occurrence, his wife used to sell Apong (i.e., locally made liquor) and, at times, she used to be late in coming home. Though PW2 has claimed that on making enquiry from his wife as to who had committed rape on her, she had named Baiju Baby and Raju Chetry as the persons, who had committed rape on her, the evidence, so given by PW2, cannot be believed at all inasmuch as even the victim did not know the identity of the two men, who had allegedly subjected her to rape. In fact, putting to rest any speculation as regards the question as to whether the persons, who had allegedly subjected PW1 to rape, were or were not known, PW2 concedes, in his evidence, that he did not go to the police immediately, because he wanted to know as to who had committed rape and, while he was looking for the men, who had committed rape, he met Sarki Lama (PW3) at the place of occurrence and he suspected that Sarki Lama, who had been found, at the place of occurrence, must be the one, whom he (PW2) was looking for, and, accordingly, he (PW2), on the following day of the occurrence, reported the matter to the police. This witness (PW2) further admits that he did not know the accused persons prior to the occurrence and he saw them after they had been arrested by the police. 26. This witness (PW2) further admits that he did not know the accused persons prior to the occurrence and he saw them after they had been arrested by the police. 26. When the evidence of PW2 and PW3 is dispassionately analysed, what emerges unscathed is that, on being reported about the commission of rape by his wife (PW1), when PW2 came to Richer Line in order to find out as to who were the culprits, he happened to meet Sarki Lama (PW3) in the said area and developed the suspicion that Sarki Lama (PW3) was the person, who was involved. No wonder, therefore, that the FIR, which was lodged, in the present case, by the victim, named Sarki Lama as one of the accused; but, when the evidence on record is considered, as a whole, what clearly transpires is that as Sarki Lama (PW3) had been named in the FIR, the police apprehended him and kept him in the lock-up for three days and, while he was in the police custody, PW3 told the police that the man, whom he had found at Kicher Line Tin-ali, was either a Madrasi person or a person from the Army, the police brought the Appellant, Baiju Baby, to the police station, where PW3 identified the Appellant as the person, whom he (PW3) had seen in the said area. 27. Coupled with the above, it is necessary to point out that the evidence on record does not reveal as to how Raju Chetri has been named in the FIR lodged by PW1 nor is it discernible from the evidence on record as to how police happened to nab the Appellant, Baiju Baby. 28. 27. Coupled with the above, it is necessary to point out that the evidence on record does not reveal as to how Raju Chetri has been named in the FIR lodged by PW1 nor is it discernible from the evidence on record as to how police happened to nab the Appellant, Baiju Baby. 28. In short, the disquieting features of the present case are: (i) The FIR names accused Raju Chetri as one of the accused; but it is not discernible from the evidence on record as to how PW1 came to know that accused Raju Chetri was one of the persons, who had subjected her to rape; (ii) Though the FIR names Sarki Lama (PW3) as one of the accused, a combined reading of the evidence, given by PWs 2 and 3, makes it clear that PW2 did not know as to who the culprits were; but as he (PW2) had seen Sarki Lama (PW3) in the area, where the occurrence had, admittedly, taken place, he named Sarki Lama (PW3) as an accused in the FIR on suspicion. Sarki Lama, in turn, happened to mention to the police that he was innocent and the culprit could be the person, whom he had met in the said area, and that the person, whom he had so met, was, perhaps, a Madrasi boy or an army personnel; (iii) It is not known as to how police came to suspect that it was Baiju Baby, who was one of the persons, who had subjected PW1 to rape and (iv) The evidence of PW1 with regard to identification of the two accused cannot, in the facts and attending circumstances of the present case, be safely relied upon. 29. Notwithstanding, however, the disquieting features of the prosecution case, which we have already pointed out, and notwithstanding also the fact that there is no cogent, precise, clinching, discernible and reliable evidence indicating that PW1 could have identified or has correctly identified the two accused persons, it is, to our mind, imperative to take note of the answers given by the two accused persons, when they were examined under Section 313 Code of Criminal Procedure. 30. We, first, consider the answers given by accused-Appellant, Baiju Baby, while he was being examined under Section 313 Code of Criminal Procedure. The questions put to him and his response to the questions, so put, read: Q.1. 30. We, first, consider the answers given by accused-Appellant, Baiju Baby, while he was being examined under Section 313 Code of Criminal Procedure. The questions put to him and his response to the questions, so put, read: Q.1. PW1 Smti B.K., the complainant and victim, stated before the Court that on 20-10-1999 at about 2100 hrs you along with Raju Chetry entered into her room and dragged her away holding her hair from back side and taken to the bush at a distance of about 80-90 mtrs from her room. What have you got to say? Ans: It is fact that we had taken her to jungle as she wanted to have the sexual intercourse inside the house. When other people were also present and we do not want to do the same at house. Q.2. PW-1 further stated that one of you was holding her throat and Anr. was holding one dao which was shinning in the night and so out of fear she had to remain silent and then you had thrown away her wearing clothes. What have you got to say? Ans: It is fact that one of us was holding dao and as people were going up & down nearby she remained silent. We also tore her clothes. But is not true that we were holding her throat. Q.3. PW1 further states that you had raped her once. What have you got to say? Ans: Yes. Q.4. PW3, Shri Sarki Lama, stated before the Court that when you were brought to the police station under arrest he pointed at you whom he came across at Kitcher Line Tin-ali on that particular night. What have you got to say? Ans: Yes. Q.5. PW3 further stated that you had accepted before police that you and Raju Chetry had committed the offence of rape upon the victim lady. What have you got to say? Ans: Yes. Q.6. Do you want to adduce any evidence in support of your defence? Ans: No. Q.7. Have you got anything more to say? Ans: No. 31. Q.5. PW3 further stated that you had accepted before police that you and Raju Chetry had committed the offence of rape upon the victim lady. What have you got to say? Ans: Yes. Q.6. Do you want to adduce any evidence in support of your defence? Ans: No. Q.7. Have you got anything more to say? Ans: No. 31. As the answer given by accused Baiju Baby to the Court's question No. 5 amounts to making of his confession to the police, we keep excluded from consideration the answer given by this accused to question No. 5; yet when the remaining answers given by accused-Appellant, Baiju Baby, are dispassionately considered in the backdrop of the fact that the evidence on record proves beyond any shadow of doubt that PW1 had, indeed, been subjected to sexual intercourse by two male persons forcibly, what transpires to be the admitted case of the Appellant, Baiju Baby, is that he, along with accused Raju Chetry, had, indeed, taken PW1 to the bushes, one of them was holding a dao, they tore her clothes, had sexual intercourse with her. In the face of these admissions made by the accused-Appellant, Baiju Baby, during his examination under Section 313 Code of Criminal Procedure, if this Court finds that these statements can be legally relied upon, there would remain no room for doubt that the Appellant, Baiju Baby, was one of the two men, who forcibly had sexual intercourse, in the jungle, with PW1. 32. Similarly, examination of accused Raju Chetri, under Section 313 Code of Criminal Procedure, read as under: Q.1. PW1 Smti B.K., the complainant and victim, stated before the Court that on 20-10-1999 at about 2100 hrs you along with Baiju Baby entered into her room and dragged her away holding her hair from back side and taken to the bush at a distance of about 80-90 mtrs from her room. What have you got to say? Ans: It is not true we had dragged her to jungle holding on her hair. Complainant herself went ahead of my friend after which I followed. Q.2. PW-I further stated that one of you was holding her throat and Anr. was holding one dao which was shinning in the night and so out of fear she had to remain silent and then you had thrown away her wearing clothes. What have you got to say? Complainant herself went ahead of my friend after which I followed. Q.2. PW-I further stated that one of you was holding her throat and Anr. was holding one dao which was shinning in the night and so out of fear she had to remain silent and then you had thrown away her wearing clothes. What have you got to say? Ans: It is fact that I was holding dao in my hand, but I do not know whether my friend was holding her throat. We both torn away her clothes and she remained silent. Q.3. PW1 further states that you had raped her twice. What have you got to say? Ans: Yes. Q.4. PW3, Shri Sarki Lama, stated before the Court that you had accepted before police that you and Baiju Baby had committed the offence of rape upon the victim lady. What have you got to say? Ans: Yes. Q.5. Do you want to adduce any evidence in support of your defence? Ans: No. Q.6. Have you got anything more to say? Ans: No. 33. While considering the above statements of accused Raju Chetri, what needs to be borne in mind is that though this accused admits that he had admitted before the police that he had committed, along with accused Baiju Baby, rape on PWl, this admission, made under Section 313 Code of Criminal Procedure, can be attributed no importance at all inasmuch as this admission or confession was made in the custody of the police; but what cannot be ignored and must not be ignored, while considering the statements, made by accused Raju Chetri, under Section 313 Code of Criminal Procedure, is that according to him, he had not dragged PW1 by holding her hair; rather, she herself went ahead of accused Baiju Baby and he (accused Raju Chetri) followed them. What is, however, important to note, in the examination of accused Raju Chetri, is that he admits that he was the one, who was holding the dao in his hand, which was shining at night, and that both of them tore away the clothes of PW1. That apart, this accused has admitted that he had sexual intercourse with PW1 twice. What is, however, important to note, in the examination of accused Raju Chetri, is that he admits that he was the one, who was holding the dao in his hand, which was shining at night, and that both of them tore away the clothes of PW1. That apart, this accused has admitted that he had sexual intercourse with PW1 twice. The questions, therefore, are as to what the value of the confession, so made by accused Raju Chetri, is and if such a confession, made under Section 313 Code of Criminal Procedure, can be legally relied upon for maintaining the conviction of this accused person. 34. Before proceeding further, we may, at once, point out that when PW1 had denied that the sexual intercourse, which the two men had with her, in the bushes, was with her willingness and consent, none of the Appellants could elicit from her cross-examination to show that her consent was available to the said acts of sexual intercourse. In this regard, except for making statements, in the examination under Section 313 Code of Criminal Procedure, to the effect that as other people were also present in the rented room of PW1, and as they did not want to have sexual intercourse inside her room, they had sexual intercourse with her in the bushes, there is no other material on record to show consent of PW1 to the acts of sexual intercourse, which PW1 had undergone. This apart, we have already pointed out that there is ample evidence on record showing that the acts of sexual intercourse, which PW1 had been subjected to, was against her will. 35. What is, now, crucial to note is that even while so contending that the sexual intercourse, which he (Baiju Baby) and his associate had with PW1, the accused-Appellant, Baiju Baby, himself states, in his examination under Section 313 Code of Criminal Procedure, that one of them was holding a dao and as people were going up and down nearby, PW1 remained silent and they tore her clothes. If the statements, so made by the accused-Appellant under Section 313 Code of Criminal Procedure, are believable and can be legally relied upon, there can remain no hesitation in concluding, and concluding finally, that the sexual intercourse, which the two accused persons had with PW1, was against the will, and without the consent, of PW1 inasmuch as one of the two accused was, admittedly, holding a dao in his hand, while the clothes of PW1 were torn apart. 36. The question, therefore, is this: Whether the law permits using of admissions or confessions made by an accused, during the course of his examination, under Section 313 Code of Criminal Procedure, and if so, how and to what extent. 37. While considering the scope and value of a statement made by an accused under Section 313Code of Criminal Procedure, what needs to be pointed out is that under Section 313(1)(a) Code of Criminal Procedure, a trial Judge is empowered to put any question to an accused at any stage of the trial; but at the end of the trial, it is, under Section 313(1)(b), mandatory for the trial Judge to put to the accused, facing trial, every such piece of evidence, which appears to be incriminating against the accused, and reply of the accused shall be sought thereto. In fact, Section 313 Code of Criminal Procedure aims at enabling an accused to personally explain circumstances appearing in the evidence against him. Examination of an accused, under Section 313(1)(b) Code of Criminal Procedure, is, therefore, not an empty formality, but a solemn act of every trial Court. 38. As observed by the Apex Court, in State of Maharashtra v. Sukhdeo Singh reported in AIR 1992 SC 2100 , Section 313 Code of Criminal Procedure is a statutory provision, which embodies the fundamental principle of a fair trial based on the maxim audi alteram partem, that attention of the accused must be specifically invited to inculpatory pieces of evidence or circumstances, laid on record, with a view to giving the accused an opportunity to offer his explanation if he chooses to do so. 39. 39. As a matter of fact, as indicated in Sukhdeo Singh (supra), Section 313(1)(b) Code of Criminal Procedure not only casts a solemn duty on the trial Court to elicit the response of the accused to every piece of incriminating circumstance, which may appear against him, but also confers a corresponding right on the accused to receive an opportunity so that he can offer his explanation, if he has any, with regard to such incriminating materials or circumstances as may be appearing against him from the evidence on record. Examination of the accused under Section 313(1)(b) Code of Criminal Procedure is reached after the witnesses of the prosecution have been examined and before the accused is called on to enter upon his defence. At the stage of closure of prosecution's evidence and before recording statement of the accused under Section 313(1)(b) Code of Criminal Procedure, the trial Judge is not expected to evaluate the evidence for the purpose of deciding whether or not he should question the accused. 40. Before an accused is examined under Section 313(1)(b) Code of Criminal Procedure, the trial Judge is not expected to sift the evidence and pronounce whether or not he would accept the evidence regarding any incriminating material against the accused to determine whether or not he would examine the accused on that material. To do so, points out the Apex Court, in Sukhdeo Singh (supra), would amount to pre-judging the evidence without hearing the prosecution under Section314 Code of Criminal Procedure No wonder, therefore, that the Supreme Court, in Sukhdeo Singh (supra), has observed that however weak or scanty the prosecution evidence may be with regard to an incriminating material, it is the duty of the Court to examine the accused and seek his explanation thereto. It is only after that stage is over that the oral arguments have to be heard before the judgment is rendered and it is only where the Court finds that no incriminating material has surfaced that the accused may not be examined under Section 313. In short, if there is material against the accused, he must be examined, under Section 313(1)(b) Code of Criminal Procedure, however weak or scanty the evidence against the accused may be. The relevant observations read as follows: To do so would be to pre-judge the evidence without hearing the prosecution under Section 314 of the Code. In short, if there is material against the accused, he must be examined, under Section 313(1)(b) Code of Criminal Procedure, however weak or scanty the evidence against the accused may be. The relevant observations read as follows: To do so would be to pre-judge the evidence without hearing the prosecution under Section 314 of the Code. Therefore, no matter how weak or scanty the prosecution evidence is in regard to a certain incriminating material, it is the duty of the court to examine the accused and seek his explanation thereon. It is only after that stage is over that the oral arguments have to be heard before the judgment is rendered. It is only where the court finds that no incriminating material has surfaced that the accused may not be examined under Section 313 of the Code. If there is material against the accused he must be examined. In the instant case it is not correct to say that no incriminating material had surfaced against the accused, particularly accused 5, and hence the learned trial Judge was not justified in examining the accused under Section 313 of the Code. (Emphasis is added) 41. What emerges from the above discussion is that when the prosecution's evidence is closed, it is imperative, on the part of the trial Judge, to examine the accused under Section 313(1)(b) Code of Criminal Procedure. In such examination, the Judge has the duty to put to the accused all such circumstances, which appear from the evidence on record, incriminating against the accused and solicit the response of the accused thereto. This would give an opportunity to the accused to explain incriminating materials, which may have surfaced on the record against him. The answer, so given, by the accused may be taken into consideration along with the evidence on record. 42. In order to correctly appreciate the scope of Section 313 Code of Criminal Procedure, it is necessary to recall the facts of the case of Sukhdev Singh alias Sukha (supra). In Sukhdev Singh alias Sukha (supra), accused 1 (Sukhdev Singh @ Sukha) and accused 5 (Jinda), along with Ors. , faced, amongst Ors. , a charge, under Section 302 IPC, on the ground that they had killed General Vaidya, retired Chief of Army Staff, and his wife. When the charges were framed at the trial, both these accused, along with Ors. , faced, amongst Ors. , a charge, under Section 302 IPC, on the ground that they had killed General Vaidya, retired Chief of Army Staff, and his wife. When the charges were framed at the trial, both these accused, along with Ors. , pleaded not guilty and claimed to be tried; but barely two weeks thereafter, the accused 1, orally, informed the learned trial Judge that he had killed General Vaidya and he did not desire to contest the case. At a latter stage, when accused 1 was examined under Section 313 Code of Criminal Procedure, he made a statement to the effect that according to him, killing of General Vaidya was not a crime, because General Vaidya was responsible for conducting operation Blue Star, which had damaged a sacred religious place like the Akal Takht of the Golden Temple and, that is why, he had not pleaded guilty. The learned trial Judge gave time to accused 1 to reflect on the admissions, which he had made, and, on the date fixed, accused 1 presented a written statement, wherein also he had admitted to have fired four shots to General Vaidya and killed him. Even when his statement, under Section 313 Code of Criminal Procedure, was, later on, recorded, accused 1 owned the statement, which he had so made in writing (Ext. 60A). 43. So far as accused 5, in Sukhdev Singh's case (supra), was concerned, he, having not pleaded guilty to the charge, continued to contest the case until he was examined under Section 313 Code of Criminal Procedure, wherein he made statements, in writing, admitting to have driven the motorcycle with accused 1 as a pillion rider and also admitting that the accused 1 had fired fatal shots on General Vaidya, while still sitting in the pillion seat. Accused 5 supplemented this statement by yet Anr. statement, which he submitted, in writing, and proved as Ext. 922. 44. Thus, in Sukhdev Singh's case (supra), the two accused, in their oral as well as written statements, had made it clear that they believed that General Vaidya was responsible for conducting operation Blue Star, which had damaged Akal Takht, and it also injured the religious belief and sentiments of the Sikh community, and General Vaidya was, therefore, guilty of serious crime and they had merely executed him and, in doing so, they had not committed any crime whatsoever. These facts are clearly noted at Paragraph 46, 47 and 48 of the decision in Sukhdev Singh (supra). 45. It was in the above fact situation that it was submitted before the Apex Court, on behalf of the two accused, in Sukhdev Singh (supra), that when there is no evidence or circumstance, appearing in the prosecution evidence implicating an accused with the commission of a crime with which he is charged, there is really nothing for the accused to explain and, hence, his examination would be wholly unnecessary and improper. In fact, it was submitted, in Sukhdev Singh (supra), that in such a situation, the accused cannot be questioned at all and his answers cannot be used in the evidence, which may have been adduced, and, hence, the statements, made by accused 1 and accused 5, during their examinations under Section 313 Code of Criminal Procedure, should be totally discarded. It was further suggested to the Court that the evidence adduced by the prosecution was so weak that even if such evidence was taken to have been proved, the Court would not be in a position to convict the two accused and, hence, in such circumstances, it was unnecessary to examine the accused under Section 313 Code of Criminal Procedure, for, the answers cannot be used for the purpose of filling up the gaps in the evidence, which the prosecution has adduced against them. This apart, the statements, made by the said two accused in Sukhdev Singh's case (supra), being admission of guilt, the question was as to whether the Court could have acted upon the said admission of guilt. 46. Reacting to the above submissions made in Sukhdev Singh alias Sukha (supra), the Apex Court pointed out, already indicated above, that at the stage of examination under Section 313 Code of Criminal Procedure, the Court does not sit on the judgment and so long as there is any incriminating evidence appearing against an accused, however weak such evidence may be, the court is duty bound to question the accused. 47. 47. Before proceeding any further what is important to bear in mind is that though a statement, recorded under Section 313 Code of Criminal Procedure, is not a statement made on oath and is not, strictly speaking, evidence, yet the statement, so made, can, indeed, be taken into consideration, at the trial, against the accused for the purpose of arriving at the guilt or otherwise of the accused. In no uncertain words made the Apex Court clear this position of law, when it observed and held, in Sukhdev Singh (supra), as follows: 51. That brings us to the question whether such a statement recorded under Section 313 of the code can constitute the sole basis for conviction. Since no oath is administered to the accused, the statements made by the accused will not be evidence stricto sensu. That is why Sub-section (3) says that the accused shall not render himself liable to punishment if he give false answer. Then comes Sub-section (4), which reads: "313(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed." Thus, the answers given by the accused, in response to his examination, under Section 313. can be taken into consideration in such inquiry or trial. This much is clear on a plain reading of the above sub-section. Therefore, though not strictly evidence, Sub-section (4) permits that it may be taken into consideration in the said inquiry or trial. See State of Maharashtra v. R.B. Chowdhari (1967) 3 SCR 708 : AIR 1968 SC 110 : 1968 CriLJ 95. This Court, in the case of Hate Singh Bhagat Singh v. State of M.B. 1953 CriLJ 1933 : AIR 1953 SC 468 held that an answer given by an accused under Section 313 examination can be used for proving his guilt as much as the evidence given by a prosecution witness. In Narain Singh v. State of Punjab (1963) 3 SCR 678 : (1964) 1 CriLJ 730, this Court held that if the accused confesses to the commission of the offence with which he is charged, the Court may, relying upon that confession, proceed to convict him. In Narain Singh v. State of Punjab (1963) 3 SCR 678 : (1964) 1 CriLJ 730, this Court held that if the accused confesses to the commission of the offence with which he is charged, the Court may, relying upon that confession, proceed to convict him. To state the exact language in which the three Judge bench answered the question, it would be advantageous to reproduce the relevant observations at page 684-685: Under Section 342 of the Code of Criminal Procedure by the first sub-section, insofar as it is material, the Court may, at any stage of the enquiry or trial and after the witnesses for the prosecution have been examined and before the accused is called upon for his defence, shall put questions to the accused person for the purpose of enabling him to explain any circumstance appearing, in the evidence, against him. Examination under Section 342 is primarily to be directed to those matters on which evidence has been led for the prosecution to ascertain from the accused his version or explanation, if any, of the incident, which forms the subject-matter of the charge and his defence. By Sub-section (3), the answers given by the accused may 'be taken into consideration' at the enquiry or the trial. If the accused person in his examination under Section 342 confesses to the commission of the offence charged against him, the court may, relying upon that confession, proceed to convict him: but if he does not confess and, explaining circumstance, appearing in the evidence against him, sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirety. Sub-section (1) of Section 313 corresponds to Sub-section (1) of Section 342of the old Code except that it, now, stands bifurcated in two parts with the proviso added thereto clarifying that in summons case, where the presence of the accused is dispensed with, his examination under Clause (b) may also be dispensed with. Sub-section (2) of Section 313 reproduces the old Sub-section (4) and the present Sub-section (3) corresponds to the old Sub-section (2) except for the change necessitated on account of the abolition of the jury system. The present Sub-section (4) with which we are concerned is a verbatim reproduction of the old Sub-section (3). Sub-section (2) of Section 313 reproduces the old Sub-section (4) and the present Sub-section (3) corresponds to the old Sub-section (2) except for the change necessitated on account of the abolition of the jury system. The present Sub-section (4) with which we are concerned is a verbatim reproduction of the old Sub-section (3). Therefore, the aforestated observations apply with equal force. (Emphasis is supplied) 48. From what have been observed and laid down in Sukhdev Singh (supra), it becomes transparent that if an accused person, in his examination under Section 313 Code of Criminal Procedure, confesses to the commission of the offence (s) charged with, the Court may, relying upon such confession, proceed to convict the accused and it is only when the accused does not confess and/or the accused chooses to explain the circumstances appearing in the evidence against him or sets up his own version of the occurrence claiming to the effect that he had committed no offence, the statement of the accused, made during the course of examination under Section 313 Code of Criminal Procedure, can be considered in its entirety along with other pieces of evidence on record. To put it a little differently, there is no impediment in law for a Court to found conviction of an accused on his confession made by him during his examination under Section 313 Code of Criminal Procedure and/or to rely upon an admission of facts made by an accused during his examination under Section 313 Code of Criminal Procedure. 49. It further logically follows from what have been observed and laid down, in Sukhdev Singh (supra), that an admission of a piece of evidence, which an accused may voluntarily make, at the stage of his examination under Section 313 Code of Criminal Procedure, can be relied upon and there is no impediment, in law, in convicting an accused on such admission made in the statement under Section 313 Code of Criminal Procedure if such statement, taken in its entirety, in the light of the other evidence on record, proves beyond doubt that the accused is the one, who has committed the offence. 50. The legal position, as discussed above, with regard to the object and scope of Section 313 Code of Criminal Procedure, is further reinforced by a three Judge Bench decision in State of U.P. v. Lakhmi reported in (1998) 4 SCC 336 . 50. The legal position, as discussed above, with regard to the object and scope of Section 313 Code of Criminal Procedure, is further reinforced by a three Judge Bench decision in State of U.P. v. Lakhmi reported in (1998) 4 SCC 336 . In order to appreciate the law, on the use of the statement of an accused made under Section 313 Code of Criminal Procedure, it is necessary to take note of the material facts of the case in Lakhmi (supra), wherein accused Lakhmi faced the charge of murder for having put his wife to death intentionally. Prosecution's case was largely based on the testimony of PW2 (Ramey). On the day of the occurrence, according to prosecution, Lakhmi inflicted blows with a phalli (a spade-like agricultural implement) on the head of the deceased. Her skull got smashed and she died on the spot. Ramey, who claims to have been working in the adjacent field, claimed that on hearing the screams of the deceased, he had rushed to the house of the accused and, on peeping through the windows, witnessed the accused smashing his wife's head by giving her blows with a phalli and, on hue and cry being raised by him (PW2), some neighbours, who heard the noise, came to the place of occurrence, broke open the door, which was bolted from iside, and overpowered the assailant. During the course of examination of the accused, under Section313 Code of Criminal Procedure, in Lakhmi (supra), one of the questions, put by the Court to the accused and the answer to the question read as follows: What have you to say about the evidence of Ramey (PW2) that he peeped through the window and saw you standing near her bed and you killed her with phalli (Ex. Ka-1) and Kunda (Ex.Ka-2)? The answer of the accused to the said question was this: It was not like that. I murdered her with a kunda and not with a phalli. 51. The learned Sessions Judge, in Lakhmi (supra), convicted the accused and sentenced him to imprisonment for life. The High Court, while acquitting the Appellant, held the evidence of PW2 (Ramey) was not credit worthy and at any rate, his evidence had received no corroboration from any other reliable evidence. 51. The learned Sessions Judge, in Lakhmi (supra), convicted the accused and sentenced him to imprisonment for life. The High Court, while acquitting the Appellant, held the evidence of PW2 (Ramey) was not credit worthy and at any rate, his evidence had received no corroboration from any other reliable evidence. While so acquitting the accused, the High Court did not attribute any importance to the answers, given by the Appellant, which we have reproduced hereinabove, wherein, he had practically, admitted, that he had killed his wife. 52. In the circumstances, as mentioned above, the Supreme Court, in Lakhmi (supra), has pointed out that answers to questions put to the accused may be, on most of the occasions, flat denial or outright repudiation of those circumstances, but, in certain cases, the accused would offer some explanations to the incriminating circumstances and in very rare instances, the accused may even admit or own incriminating circumstances adduced against him, perhaps, for the purpose of adopting legally recognized defences. In all such cases, points the Apex Court in Lakhmi (supra), the court gets the advantage of knowing the version of the accused about those aspects and it helps the court to effectively appreciate and evaluate the evidence in the case. If an accused admits any incriminating circumstance, appearing in the evidence against him, there is no warrant for the proposition that those admissions should altogether be ignored merely on the ground that such admissions were advanced as a defence strategy. 53. Having pointed out that Sub-section (4) of Section 313 amounts to a legislative guideline for the courts to give due weight to the answers, which an accused may give to the question put to him, the Court has clarified, in Lakhmi (supra) that when answers, given by an accused, contain admissions of circumstances appearing against him and when such admissions are not delinked from the evidence, such admissions can be used for arriving at a finding that the accused had committed the offence. 54. In the present case, the fact that PW1 had been subjected to rape cannot be doubted. The only question, which repeatedly crops up is as to whether the two accused were the ones, who had committed rape on PW1. 54. In the present case, the fact that PW1 had been subjected to rape cannot be doubted. The only question, which repeatedly crops up is as to whether the two accused were the ones, who had committed rape on PW1. When the evidence, given by PW1, as to how rape was committed on her, was put to the two accused, they answered the questions by admitting and owning, in effect, that they were the ones, who had sexual intercourse with PW1. Though their plea is that the sexual intercourse, which they had, was consensual, PW1 denies and the circumstances, which we have discussed above, speak loud and clear that the sexual intercourse, which PW1 had to undergo, was wholly against her will and without her consent. 55. We may, at this stage, pause here to further point out that from the statements made by the accused persons, during their examination under Section 313 Code of Criminal Procedure, what transpires to be the case of the two accused persons, including the Appellant, is that the sexual intercourse, which they had with PW1, was with her consent. Their defence is that while PW1 wanted to have sexual intercourse inside her rented house, they wanted to have sexual intercourse at a place away from the rented room. In effect, what the two accused persons contend is that the sexual intercourse, which they had with PW1, was consensual. We may point out that Section 114Aof the Evidence Act requires voluntary participation after having fully exercised the choice between resistance and assent. The question of consent or compulsion is to be judged on a careful consideration and scrutiny of the evidence of the victim and from other corroborative evidence, if available, and the attending circumstances preceding, accompanying or following the acts of sexual intercourse. 56. Presence of consent or its absence can be inferred from the attending circumstances of a given case. The first and foremost circumstance, which can be looked for, in a case of rape, is the evidence of resistance, which one would naturally expect from a woman unwilling to yield to a sexual intercourse forced upon her. Such a resistance may lead to the tearing of clothes, the infliction of personal injuries and even injuries on her private parts. 57. Such a resistance may lead to the tearing of clothes, the infliction of personal injuries and even injuries on her private parts. 57. From a close reading of Section 114A, what transpires is that when sexual intercourse is proved to have taken place between a man and a woman, the woman not being the wife of the man, and the woman alleges that sexual intercourse, which the man had with her, was without her consent, the burden rests with the man to show that sexual intercourse, which he had with the woman, was with her consent. 58. In the present case, while PW1 was under cross-examination, it was not suggested or even faintly indicated to her that the sexual intercourse, which she had undergone, was with her consent. This apart, her brassier and salwar were torn away. M. Ext.3, which is a part of the torn brassier, cannot help but conclude that two men had forcibly sexual intercourse with PW1. Further-more, the description of the occurrence, given by PW1, coupled with the injuries, which were found on her person by PW6, cannot but lead to the conclusion that two men 3/4 whether they were the present convicted persons or not 3/4 did have forcibly sexual intercourse with PW1 in the manner as has been alleged by her. 59. In the light of the fact that PW1 had been subjected to rape, when the statements made by the accused-Appellant are taken into account, it further logically follows that two convicted persons were the ones, who, by forming a group, had forcibly sexual intercourse with PW1 in furtherance of their common intention and committed thereby offence of gang rape. 60. Trying to pick holes in the case of the prosecution and the evidence adduced by the prosecution, Mr. Tiwari, learned Counsel for the accused-Petitioner, has pointed out that according to the evidence of PW 1, the rented house, which she had been using for carrying out her business of sale of liquor, had two rooms and while one room was occupied by PW1, the other was occupied by Anr. female person, SM, but SM has not been examined in the Court and, hence, it cannot be believed that PW 1 had been dragged from her said rented house to the bushes and subjected to rape. 61. female person, SM, but SM has not been examined in the Court and, hence, it cannot be believed that PW 1 had been dragged from her said rented house to the bushes and subjected to rape. 61. While considering the above submission made on behalf of the accused-Appellant, what needs to be noted is that the rented house, admittedly, had two rooms and while one room was occupied by PW 1, the other one was occupied by SM. Apart from the fact that PW1 has deposed, in her cross-examination, that SM was sleeping at the time of the occurrence and nobody knew about the incident, what is extremely important to note, in this regard, is that PW4 is a person, who resides in the same locality and his version, as regards the occurrence, is that on 20.10.1999, at about 9 PM, while he was in bed, he heard some sound outside, but he thought that some persons might be quarrelling with each other and he did not go out of his house. What is of immense importance to note, in the evidence of PW4, is that according to PW4, the locality, where the alleged occurrence had taken place, is occupied by ladies selling Apong and there are frequently shouting and fighting amongst the customers. In such circumstances, it is quite possible that even if somebody hears any sound, he or she, such as, SM, may not pay any heed to such sound nor would he or she try to find out as to what has happened. Above all, the evidence given by PW1, describing the occurrence of rape committed on her, is simple, coherent, consistent and inspires confidence. Merely because she is in the trade of sale of illicit liquor, her evidence, which is other wise, believable, cannot be discarded See State of Maharashtra v. Madhukar Narayan Mardikar reported in AIR 1991 SC 207 . 62. Situated thus, there can be no escape from the conclusion, if we may reiterate, that the evidence on record cry loud and clear, and prove beyond all reasonable doubt, that PW1 was, indeed, subjected to rape. Whether the two accused persons were the ones, who had committed rape on PW1 or not, is the only question, which remains to be determined. Whether the two accused persons were the ones, who had committed rape on PW1 or not, is the only question, which remains to be determined. In this regard, when the statements, made by the two accused persons under Section 313 Code of Criminal Procedure, are taken along with the other evidence on record, there remains no room for doubt that the two convicted persons were the ones, who had subjected PW1 to rape. 63. What has also been pointed out by Mr. Tiwari is that in the FIR, two names have been mentioned, namely, Sarki Lama and Raju Lama and not of the two convicted persons. It may be noted that the FIR was, admittedly, lodged, on the following day of the occurrence, naming the two persons aforementioned as persons, who had allegedly dragged out PW1 from her house and sexually assaulted her and that when she tried to free herself from their clutches, they put fear in her by showing a dao. The description of the occurrence, given by PW1, at the trial is substantially supported by the FIR lodged by her. The only question is that while the trial was faced by Raju Chetri and Baiju Baby, (i.e., the Appellant), the FIR named Sarki Lama and Raju Chetri. The fact that there are mistakes in naming the persons is not material inasmuch as PW1 had not recognized any of the two persons, who had subjected her to rape. It is, therefore, quite possible that there was a mistake in correctly naming the persons, who were involved in the said occurrence. 64. Coming to the fact that the FIR names Sarki Lama as one of the accused, it is noteworthy that Sarki Lama has been examined as one of the witnesses instead of having been put to trial. Why it has so happened is discernible from the evidence of Sarki Lama himself, who has been examined as PW3 and whose evidence, we have already discussed above. 65. Coupled with the above, we cannot ignore that in their examination under Section 313 Code of Criminal Procedure, none of the two accused has denied that they had sexual intercourse with the prosecutrix; what they, rather, contend is that the sexual intercourse, which they had with PW1, was with the consent of PW1. 65. Coupled with the above, we cannot ignore that in their examination under Section 313 Code of Criminal Procedure, none of the two accused has denied that they had sexual intercourse with the prosecutrix; what they, rather, contend is that the sexual intercourse, which they had with PW1, was with the consent of PW1. Thus, the only defence taken by the accused is that the victim had voluntarily given her consent for sexual intercourse. If it be really so, the question of her clothes being torn, particularly, her undergarments, would not have arisen. The Investigating Officer has deposed that when he visited the place of occurrence, he found one piece of torn bra and this piece of torn bra has been proved as M. Ext. No. 4. Moreover, as correctly noted by the learned trial Court, PW1 would not have received the injuries, which the doctor (PW6) had found on her person, if she was a consenting party. Further-more, had she been a consenting party, it was not required to guard her by holding a dagger; and, above all, there is no reason for her to go and falsely report a case of rape. 66. Though there are discrepancies in the evidence given by PW1 and her husband with regard to the person, who had written the FIR, and with regard to the fact as to who was the one, on whose instructions, the FIR was written and how the names of two persons, namely, Sarki Lama and Raju Chetri, came to be mentioned there, these discrepancies do not take away, in the ultimate analysis, the credible, unshaken and indisputable evidence given by the prosecutrix that two men forcibly had sexual intercourse with her, as deposed to by her. Coupled with this proven fact, when one considers the answers of the two accused persons, which they had given during the course of their examination under Section 313 Code of Criminal Procedure, there remains no doubt, in the face of their admission, that they are the ones, who had, in furtherance of their common intention, forcibly subjected PW1 to sexual intercourse and thereby committed the offence of gang rape. The conviction of the two accused must, therefore, be sustained. The conviction of the two accused must, therefore, be sustained. This conclusion is further fortified by the fact that while cross-examining PW1, none of the accused-Appellants had disputed the fact that they had sexual intercourse with her, what they had, in fact, denied was that they had committed rape on her meaning thereby that the intercourse, which they had with PW1, was with her consent and it is this case of the defence, which the defence sought to establish in their examination under Section313 Code of Criminal Procedure, but miserably failed. 67. As far as the sentences passed against the accused persons are concerned, the same is not harsh; rather, the sentences are lenient. In such circumstances, even the sentences, passed against the two accused persons, call for no interference. 68. In the result and for the reasons discussed above, the conviction of the two accused persons and the sentences passed against them are hereby maintained. The reference shall accordingly stand answered. 69. The appeal, preferred by the accused, Baiju Baby, thus, fails and the same shall accordingly stand dismissed. 70. Send back the LCR. Appeal dismissed