JUDGMENT Mandhata Singh, J 1. Statement/fardbeyan of Jamwanti Devi one of the victims has been made basis for lodging the F.I.R. which in short is that in the night of 30.8.1997 at about 10.30 PM she was sleeping in her room along with her husband Lallan Ravidas which was opened and it was raining also. Her brother-in-law (Dewar) was sleeping with his wife in another room. Other family members were sleeping in different rooms. Her father-in-law, mother-in-law and Nanad had gone to sleep in the house of Kesar Ravidas (P.W.2). It is alleged that 3-4 persons entered her room, tied her husband’s hands, took him to another room and bolted there. It is further alleged that two persons again entered her room and committed rape upon her after giving threatening to her life. After leaving her room by miscreants, she (informant) came out from her room and found her husband and Dewar Shankar Ravidas confined in the room of Sheobarat Ravidas. She opened his room which was bolted from outside, untied hands of her husband and Dewar. In the meantime, Peyari Devi also came and reported that five of the accused persons had committed rape upon her after giving threatening to her life and taken away her ornaments and it is said that her husband Lallan Ravidas had identified Vijay Yadav, Udai Pandit, Kuldip Yadav and son of Lucha Yadav, all of village Kukiasin. Her Dewar and grand father-in-law have also identified the above miscreants. It is further alleged that she heard that above miscreants had committed some crime in the house of Kasturi Manjhi. 2. The trial ended in conviction and sentence to accused appellants for the offence under sections 376(2)(g) wrongly mentioned in the judgment “(G)”, 324/34 and 450/34 of the Indian Penal Code and sections 3(1)(x) (xii) of S.C./S.T. (Prevention of Atrocities) Act wrongly mentioned in the judgment of the trial court as 3(x)(xi) & (xii) of S.C./S.T. (Prevention of Atrocities) Act by passing the impugned judgment and order validity of which has been questioned through filing these appeals. 3. 3. In all 14 witnesses are examined in the case and they are P.W.1 Dr Meena Kumari, P.W.2 Kesar Ravidas, P.W.3 Manki Devi, P.W.4 Ramakant Ram, P.W.5 Razia Devi, mother-in-law of victims, P.W.6 Dulari Devi, P.W.7 Kasturi Manjhi uncle of victims’ husband, P.W.8 Mungeswar Manjhi, P.W.9 Lallan Ravidas husband of the informant, P.W.10 Shankar Ravidas husband of one of the victims, P.W.11 Jamwanti Devi informant of the case, P.W.12 Peyari Devi one of the victims, P.W.13 Sheobarat Ravidas grand father-in-law of victims and P.W.14 Shahjehan Khan I.O. of the case. 4. P.W.1 is doctor who examined both the victim ladies and found no sign of rape which could appear on the person of victims. It is made clear that probability of appearing of any sign in case of resistance is injury on person of victims including their private part and remaining of semen. In this case, F.I.R. as well as statement of both the victims in their examination in chief is clear that rape was committed upon them by group of persons giving threatening to their lives and there was no resistance at all. 5. P.W.14 is I.O. of the case can be discussed whenever required in the case. Informant and her family members are members of scheduled caste is not denied in the case and offences under any section of S.C./S.T. (Prevention of Atrocities) Act is made applicable only to their (victims) being member of scheduled caste community. Rest of offences are of confinement to family members of the informant, commitment of theft of ornaments and household articles and commitment of rape. 6. Witnesses can easily be divided in several groups including hostile, hearsay for part of the incident and eye witness for the rest, eye witness, victims, identifying the all or none or some of them. 7. P.W.2 is stating about his coming from Sasural next day of the incident and hearing about taking place of the incident of theft and commitment of rape, same is repeated by P.W.3 also. P.Ws 4 and 8 are stating about hearing of commitment of rape upon Peyari Devi and Jamwanti Devi. P.Ws 3 and 4 have been declared hostile, cross-examined by the prosecution but all these witnesses i.e. P.Ws 2 to 4 are of no avail for the prosecution in either way to believe or disbelieve the prosecution case. This much is the result of hostile and hearsay witnesses. 8. P.Ws 3 and 4 have been declared hostile, cross-examined by the prosecution but all these witnesses i.e. P.Ws 2 to 4 are of no avail for the prosecution in either way to believe or disbelieve the prosecution case. This much is the result of hostile and hearsay witnesses. 8. P.Ws 5, 6 and 7 are stating about entering of miscreants in their rooms and taking away of household articles and ornaments, so they are eye witnesses to the incident of commitment of theft but not of commitment of rape. P.Ws 9 and 10 are husband of both the victims respectively. They are stating appearance of miscreants taking them to the room of their grand father by tying their hands and bolting the room from outside. They were untied only when the miscreants left the place of occurrence and told about whole incident about commitment of theft and commitment of rape, so on the point of taking place of incident of theft or rape they are hearsay witnesses, only P.W.13 is a witness in whose room P.Ws 9 and 10 were brought and bolted after closing the door. He was also told about taking place of incident of commitment of rape upon P.Ws 11 and 12, no doubt part of incident of theft is shown committed in his room also. 9. Thus, it appears that P.Ws 9 and 10 are solely important on the point of identification of accused persons. P.W.13 is important in part about taking place of incident of theft and part for identification of accused appellants. P.Ws 10 and 11 are there to state that miscreants came either two of them or five of them committed rape upon them, P.W.11 is stating about commitment of rape by two and P.W. 12 is stating about commitment of rape by five. P.W.12 is claiming none to be identified by her and P.W. 11 is naming two but identifying one only namely Vijay Yadav in Court but same is not in conformity with her statement made under section 161 Cr.P.C., on that point her attention is drawn also. 10. Thus, after discussion of all the evidences it appears that miscreants more than five in number appeared at the place of occurrence, entered different rooms, committed theft and rape upon P.Ws 11 and 12 and five of them specifically accused appellants are identified by P.Ws 9, 10 or 13. 10. Thus, after discussion of all the evidences it appears that miscreants more than five in number appeared at the place of occurrence, entered different rooms, committed theft and rape upon P.Ws 11 and 12 and five of them specifically accused appellants are identified by P.Ws 9, 10 or 13. No doubt is created if any of them is not known to them from earlier. Doubt is cast on the point of commitment of rape upon P.Ws 11 and 12 that no positive mark (sign) in nature of injury or the semen was found while they were examined by the doctor. It has already been observed that any violence in nature of injury is possible in case of resistance by victims of the case. 11. Both the victim ladies are married, admittedly habituated to sexual intercourse, one of them has given birth of child also, presence of semen from their vaginal swab is not probable in each and every cases, so, there appears no ground to doubt the allegation leveled by victims on the point of commitment of rape upon them. 12. Further whole prosecution case is doubted on the point of recording of statement/fardbeyan of P.W.11 at the Police Station or at the place of occurrence. P.Ws 7, 10 and 11 are witnesses to state about their going to police station and recording of the evidence there and it has come that family members remained there for hours but that is clarified by P.Ws 13 and 14. P.W. 14 is I.O. of the case and Officer Incharge of Police Station also, in course of examination in chief he states that he came to know about commitment of incident of rape, went to the place of occurrence, recorded statement of Jamwanti Devi. In cross-examination of P.W.14 in paragraph 8 it has come that there was road Jam in the morning of 31.8.1997 (next day of the incident) that was cleared at 9.30 and he was returning to Police Station thereafter Fardbeyan was recorded that is clarified by P.W.13 also rather an specific question was put in cross examination by the defence and that is replied in paragraph 10 that there was road Jam on Gaya Khizarsarai Road, Police had come to clear the same and in that continuation there was talk, statement was recorded, though thumb impression was taken at Police Station. In any case Officer Incharge of Police Station was absent from the Police Station, family members if had gone there, no action was taken rather they remained there for 3-4 hours as it has appeared in their statement. In paragraph 7 of statement of P.W.10 some discrepancy is shown about timing of recording of fardbeyan, lodging of F.I.R. and coming to know the incident by P.W.14. In his statement it has appeared that he came to know the incident at about 11.30 am. Fardbeyan is shown recorded at 11.00 am appears a mistake only in deposing the time as it was all depending on record, personal knowledge may not be counted and that is within hour only, if had really appeared then also can easily be ignored. 13. All the relevant points have been discussed/taken into consideration by the trial court and rightly has been ended in conviction and sentence to all the accused appellants. 14. The way in which offence is shown committed, no sympathy can be given on the point of sentence. The minimum punishment for gang rape is ten years which is awarded in this case to the appellants and in that continuation they have further been awarded sentence for other offences under different sections of the Indian Penal Code by the trial court. Incident of theft could be defined as one under section 395 of the Indian Penal Code but not the stage to observe that is relevant for justifying sentence only. 15. All the appeals are accordingly, dismissed and the judgment of conviction and order of sentence dated 29.9.1999 passed in Buniadganj P.S.Case No. 32/97/Tr.No.32/97 is hereby affirmed. As the appellants are on bail their bail bonds are cancelled. They are directed to surrender before the court below to serve the rest of the sentence. The trial court is directed to take necessary steps for taking them into custody. A copy of judgment along with lower court records be sent back to the trial court forthwith.