Judgment ( 1. ) Fourth Additional Sessions Judge, Rewa has passed the impugned judgment dated 27.11.1995 in Sessions Trial No. 176/93 by which appellants/accused have been convicted under Section 376(2)(g) of Indian Penal Code and sentenced each of them to undergo rigorous imprisonment ten years with fine of Rs. 100/-, in default they have to suffer further one month (each) simple imprisonment. Being aggrieved, appellants/accused have preferred this appeal under Section 374 (2) of the Code of Criminal Procedure. ( 2. ) Prosecution case in short is that prosecutrix Karuna Devi (PW3) after the death of her husband was living with her parents at village Madwa. On 23.4.1993, she had gone to the house of Badri Prasad, so called maternal uncle, at Govindgarh. At about 10 oclock in the night appellant Shesh Upadhyaya @ Sheshmani and Suryabhan Patel of village Madwa visited at the house of Badri Prasad (PW5). They told her that she did not go anywhere. They further told her that they carry her up to her parents house at Madwa. They took her on a motor- cycle but in the way, at nallah of Aamchua road, both of them have committed rape on her. Then they left her, near her house. Prosecutrix narrated the incident to her mother Smt. Kusum (PW2). ( 3. ) Next day morning she narrated the incident to Sarpanch Ramawtar (PW6). She lodged an FIR Ex.P/5 at police station Govindgarh. She was sent for medical examination, Dr. Uma Verma (PW10), who examined and prepared vaginal smear slides of her and handed over to the concerning constable vide Ex.P/15. ( 4. ) During investigation appellant/accused Suryabhan (A/2) was arrested. He was medically examined by Dr. Narendra Nath Misra (PW9). His underwear was also seized and handed over to the concerning constable. Bhawani Shankar Misra (PW7), Head Constable seized semens slide vide seizure memo Ex.P/12 and underwear of Suryabhan (A/2) vide Ex.P/13. Later on 16.6.1993 Shesh Upadhyaya @ Sheshmani (A/1) was arrested and medically examined by Dr. N.S. Parte (PW4). Seized articles were sent for chemical examination to Forensic Science Laboratory, Sagar. Human Spermatozoa was found in the vaginal smear slide of prosecutrix and underwear of Suryabhan (A/2) vide report Ex.P/17, by Assistant Chemical Examiner. ( 5. ) After usual investigation appellants /accused were charge sheeted. They abjured their guilt and pleaded that they have been falsely implicated. ( 6. Seized articles were sent for chemical examination to Forensic Science Laboratory, Sagar. Human Spermatozoa was found in the vaginal smear slide of prosecutrix and underwear of Suryabhan (A/2) vide report Ex.P/17, by Assistant Chemical Examiner. ( 5. ) After usual investigation appellants /accused were charge sheeted. They abjured their guilt and pleaded that they have been falsely implicated. ( 6. ) Shesh Upadhyaya (A/1) taken the plea of alibi that he was gone to drive truck at Indore ten days before the incident, but he did not examine any witness in his defence. ( 7. ) Learned Additional Sessions Judge, on appraisal of the evidence on record, convicted and sentenced appellants mentioned herein above. ( 8. ) Learned senior counsel for the appellants submitted that version of prosecutrix was not supported by medical evidence. He further submitted that this is a clear cut case where the prosecutrix was a consenting party, therefore, trial Court committed error in recording the conviction against the appellants. He prays for acquittal of the appellants. ( 9. ) On the other hand, learned Panel Lawyer for State justified and supported the impugned judgment. ( 10. ) I have heard the learned counsel for the parties and perused the evidence on record. ( 11. ) Prosecution examined as many as 11 witnesses. Prosecutrix (PW3) deposed that her mother sent her to Govindgarh Colony with maternal uncle Badri Prasad (PW5). Badri Prasad did not support the prosecutrix. He turned hostile.) Smt. Kusum (PW2), mother of the prosecutrix supported her in this regard. Prosecutrix further stated that at about 12 oclock in the night appellants came to the house of Bardri Prasad (PW5). They took her on motor cycle by saying that they will carry her to her parents house. She further stated that in the way near Hadua Nallah both of them committed rape upon her, one by one. She further stated that appellant Suryabhan (A/2) once again committed rape on her near Chhturiha Pond and then he left her near her house. According to her, at about 3 oclock she knocked the door of her house and narrated the whole incident to mother. ( 12. She further stated that appellant Suryabhan (A/2) once again committed rape on her near Chhturiha Pond and then he left her near her house. According to her, at about 3 oclock she knocked the door of her house and narrated the whole incident to mother. ( 12. ) Smt. Kusum (PW2), mother of prosecutrix, corroborated the version of prosecutrix by saying that at about 3 oclock prosecutrix came to her house and she narrated that appellants committed rape on her at Hadua Nallah in the forest (jungle) and snatched her ornaments. She further deposed that in the morning she took prosecutrix to Ramawtar (PW6), (uncle of appellant No.1) and then she took her to police station where prosecutrix lodged the report Ex.P/1. ( 13. ) Dr. Uma Verma (PW10) examined prosecutrix and prepared the vaginal smear slide and handed over to concerned constable. She prepared MLC report Ex.P/6. According to Dr. Uma Verma, prosecutrix was grown up lady and her hymen was old raptured, therefore, she could not, definitely opined regarding rape. She admitted that there was no injury on the body and private part of prosecutrix. ( 14. ) Learned counsel for the appellants vehemently argued that according to the prosecutrix, both the appellants committed rape on her in the nallah but no injury was found on her body as well as on the private part by Dr. Uma Verma (PW10), therefore statement of prosecutrix belied by medical evidence. Her testimony cannot be relied upon. He relied on Sanju @ Sanjay and another Vs. State of Madhya Pradesh, 2005 (1) MPLJ 334 and Dilip and another Vs. State of M.P., AIR 2001 SC 3049 . ( 15. ) In Sanju @ Sanjays case (supra) statement of prosecutrix was contradictory to FIR alongwith the fact that no injury, tenderness or swelling in vagina was observed by lady doctor, during medical examination of the prosecutrix, but in case in hand version of prosecutrix substantially supported by FIR Ex.P/1. ( 16. ) In Dilips case (supra) prosecutrix narrated the incident to her maternal aunt but she did not support the prosecutrix. Report of FSL also not supported the version of prosecutrix. In these circumstances, version of prosecutrix became doubtful and could not be relied upon, but in the instant case, version of prosecutrix supported by her mother Smt. Kusum (PW2) as well as supported by FSL Report Ex.P/17. ( 17. Report of FSL also not supported the version of prosecutrix. In these circumstances, version of prosecutrix became doubtful and could not be relied upon, but in the instant case, version of prosecutrix supported by her mother Smt. Kusum (PW2) as well as supported by FSL Report Ex.P/17. ( 17. ) No doubt prosecutrix exaggerated regarding the facts of snatching of her ornaments, by appellants as well as successive incident of rape committed by appellant Shesh Upadhyaya (A/1) near Chhturiha Talab. These facts did not find place in his first information report Ex.P/5 and police statement Ex.D/2 but despite these exaggerations, versions of prosecutrix cannot be said to be unreliable. ( 18. ) It would be appropriate to consider the principle laid down by the Supreme Court, for appreciating evidence in cases pertaining to offence under Section 376 and importance to be given to discrepancies. In the famous case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, AIR 1983 SC 753 , in paragraph 5(6) and 5(7), it is so observed by the Supreme Court: "5. xxx xxx xxx (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. (7) A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him ? perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment. xxx xxx xxx" Thereafter, in paragraphs 6, 7 and 8, the matter is so dealt with: "6. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses. 7. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses. 7. It is now time to tackle the pivotal issue as regards the need for insisting on corroboration to the testimony of the prosecutrix in sex-offences. This Court, in Rameshwar Vs. State of Rajasthan, (1952) 3 SCR 377 at p. 386 1952 SC 54 at p.57), has :(AIR declared that corroboration is not the sine qua non for a conviction in a rape case. The utterance of the Court in Rameshwar may be replayed, across the time-gap of three decades which have whistled past, in the inimitable voice of Vivian Bose, J. who spoke for the Court- "The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the Judge, .... .... The only rule of law is that this rule of prudence must be present to the mind of the Judge or the Jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand." 8. And whilst the sands were running out in the time-glass, the crime graph of offences against women in India has been scaling new peaks from day to day. That is why an elaborate rescanning of the jurisprudential sky through the lenses of logos and ethos, has been necessitated. And, finally in paragraph 9, the principle so crystallized: "9. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. ... ..." (Emphasis supplied) ( 19. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. ... ..." (Emphasis supplied) ( 19. ) Facts of the case in hand if scrutinized in the backdrop of the aforesaid principle, prosecutrix was took away from the house of Badri Prasad in the pretext that she was carried to her parents house and in the way during night she was subjected to rape in the lone forest. She categorically stated that during the intercourse she told accused persons that stop committing rape otherwise she will die but accused were not listening her. Regarding non-injuries on the body and person of prosecutrix, trial Court rightly commented that during the night, in lone forest, it cannot be expected from her to struggle with appellants/accused. It was a case of surrendering herself before the accused persons. I am of the same view and affirmed it. ( 20. ) When prosecutrix came out of the clutches of appellants, she immediately narrated the incident to her mother Smt. Kusum (PW2) and on the next day she narrated the incident to Ramawtar (PW6), who was Sarpanch of Village as well as uncle of accused Sheshmani (A/1). Being a relative of appellant Ramawtar (PW6) did not support the case of prosecution and tried to allege that prosecutrix was a lady of easy virtue. He declared hostile by prosecution. ( 21. ) Further version of prosecutrix substantially corroborated by FIR Ex.P/5, which was recorded by Asuthosh Pandey (PW10), Sub Inspector of Govindgarh Police Station. Her version corroborated by the report of chemical examiner of FSL Ex.P/17 in which he find human spermatozoa in the vaginal smear slide of prosecutrix and in the underwear of accused/appellant Suryabhan (A/2). ( 22. ) Appellant no. 2 Suryabhan was arrested on next day of FIR i.e. on 25.4.93 and examined by Dr. Narendra Nath Misra (PW9) and seized his underwear and handed over to the concerned constable which was seized by Bhawani Shankar Misra (PW7) Head Constable vide seizure memo Ex.P/13. Same was sent to Forensic Science Laboratory, Sagar. Assistant Chemical Examiner found spermatozoa in underwear which remain unexplained by Suryabhan (A/2). ( 23. Narendra Nath Misra (PW9) and seized his underwear and handed over to the concerned constable which was seized by Bhawani Shankar Misra (PW7) Head Constable vide seizure memo Ex.P/13. Same was sent to Forensic Science Laboratory, Sagar. Assistant Chemical Examiner found spermatozoa in underwear which remain unexplained by Suryabhan (A/2). ( 23. ) Prosecutrix is a widow lady, in these circumstances, spermatozoa found in vaginal smear, cannot be said to be of her husband. In these circumstances, FSL report also supported the version of prosecutrix. ( 24. ) Accused/appellants Shesh Upadhyaya @ Sheshmani took a plea of alibi, that he was not at the place of incident but since ten days before the incident he was at Indore, but he did not examine any witness in his defence. In these circumstances, his presence at other place appears unbelievable. On the contrary, his presence at the place of incident is well established by prosecutrix. ( 25. ) Prosecutrix admitted in statement in para-9 that Shesh Upadhyaya @ Sheshmani is her cousin brother and Ramawtar is her cousin uncle. I failed to understand that without being subjected to rape, why prosecutrix falsely implicate her cousin brother? In these circumstances, possibility of false implication is also ruled out. ( 26. ) After careful scrutinizing the evidence of prosecutrix which was corroborated by her mother Smt. Kusum (PW2) and further corroborated by FIR Ex.P/5 and FSL report Ex.P/16. I am of the view that prosecution succeeded in proving the offence under Section 376 of IPC against the appellants beyond reasonable doubt. ( 27. ) Learned counsel for the appellants have submitted that appellants were not charged for commission of offence of gang rape punishable under Section 376(2)(g) and ingredients of gang rape are also not mentioned in the charge but the learned Trial Court convicted the appellants for commission of gang rape and awarded 10 years jail sentence which is illegal. ( 28. ) This Court has perused the contents of the charge and find substance in the argument advanced by learned counsel for the appellants. There is no mention in the charge-sheet about commission of gang rape and ingredients of gang rape are also not mentioned. The appellants have been charged simplicitor for the offence under Section 376 of the IPC. ) This Court has perused the contents of the charge and find substance in the argument advanced by learned counsel for the appellants. There is no mention in the charge-sheet about commission of gang rape and ingredients of gang rape are also not mentioned. The appellants have been charged simplicitor for the offence under Section 376 of the IPC. It is true that mentioning of incorrect Section in charge ipso facto is not sufficient to set aside the conviction of the accused and accused has to establish prejudice caused to him as per provision under Section 464 of the Cr.P.C. but in the instant case not only Section but even it is not mentioned that appellants committed sexual intercourse with the prosecutrix one after another in furtherance of the common intention which is the requirement for the punishment of the accused for the offence under Section 376(2)(g) of the IPC." ( 29. ) Consequently, for the reasons stated herein above, appeal is partly allowed. Conviction and sentence of the appellants, under Section 376(2)(g) of the IPC, are hereby set aside. Instead, they are convicted under Section 376 of the IPC., since they are first offender, therefore, they sentence to undergo rigorous imprisonment of seven years and fine of Rs. 100/- (each), in default they have to suffer further one month simple imprisonment. ( 30. ) Appellants are on bail. Their bail bonds stand cancelled. They are directed to surrender themselves before the trial Court on 30th November, 2010 and trial Court is directed to send them to jail for serving out the remaining part of jail sentence.