JUDGMENT AND ORDER : N. KOTISWAR SINGH, J. 1. Heard Mr. N. Ibochaoba Singh, learned senior counsel assisted by Ms. Lailai, learned counsel and Mr. H. Kenajit, learned counsel for the appellants as well as Mr. R.S. Reisang, learned senior GA assisted by Mr. Shyam Sharma, learned GA for the State. 2. These two appeals have been preferred against the order and judgment dated 09.12.2013 passed in Sessions Trial No. 2 of 2013 by which both the appellants have been found guilty under Section 120-B IPC for criminal conspiracy and also convicted under Section 376(2)(g) IPC for committing gang rape and accordingly, sentenced to undergo rigorous imprisonment for a period of 15 (fifteen) years with a fine of Rs. 25,000/- and to undergo further rigorous imprisonment for 3 (three) years failing to pay the fine and also to undergo rigorous imprisonment for a period of 10 (ten) years for committing the offence under Section 120-B IPC with a fine of Rs. 10,000/-, failing which to undergo further rigorous imprisonment of 2 (two) years, which sentences are to run concurrently. 3. The prosecution case, in brief, is that on 20-10-2012, the two appellants, who were close friends had taken the victim girl, who became acquainted with them, in a car on the pretext of roaming around and took her inside a restaurant near the Airport and she was compelled to take soft drinks mixed with intoxicant and taking advantage of her intoxicated condition, she was raped by the appellants. 4. After the incident, an FIR was lodged on the next day on 21-10-2012 by the mother of the victim girl which is reproduced herein below: "To, The Officer-in-Charge Porompat Police Station Sub: Report Sir, I have the honor to report you that on 20.10.2012 @ 7:00 pm, my daughter, (*...... (17) returned in a very upset mood and shocking attitude. As I felt something on her unusual behaviour I enquired her about the matter in which my daughter stated that she was picked up by her boyfriend whom she knows as one William of Khagempalli area on the pretext of roaming around from Soibam Leikai near Citizen Club. From there, she was taken by the said William in a Maruti Car (Regn. Not known) towards Imphal Airport side. Thereafter, she was taken inside a Restaurant by the William with the help of his friend Tarun of Thangmeiband. From there, she was taken by the said William in a Maruti Car (Regn. Not known) towards Imphal Airport side. Thereafter, she was taken inside a Restaurant by the William with the help of his friend Tarun of Thangmeiband. There, she was forcefully given soft drink mixed with intoxication. After consuming the drink my daughter was fallen unconscious and when she regained her senses, she was raped by the said William. After fully satisfied, William dropped my daughter at Porompat area near T.V. Tower. In this regard, I requested you to kindly take necessary legal action against the accused person and punish according to law. Dt. 21.10.2012 Yours sincerely, (Ng. Nirmala Devi) Ngangbam Nirmala (41 yrs) D/o (L) Ng. Tomba Singh Kongpal Kongkham Leikai Imphal East" * Name of the victim. 5. On completion of the investigation, the appellants were charged for committing offences under Section 376 IPC, Section 120-B IPC and Section 201 IPC. Both the appellants pleaded not guilty to the aforesaid charges. While the victim girl charged both of them of raping her, the plea of the appellants has been ambiguous. During the course of the trial, the appellants denied committing rape on her but also suggested that it was a consensual sexual act. The appellant William claimed to have engaged in oral sex with the girl as stated in his statement made under Section 313 Cr. PC. The Trial Court convicted the appellants under Section 376(2)(g) IPC and Section 120-B IPC but acquitted from the charge under Section 201 IPC. 6. Before we proceed to examine the plea of the appellants in detail, it may be appropriate to place certain undisputed facts which may have a bearing on the decision on the issues raised before this Court. 7. Firstly, the Prosecutrix was about 16 (sixteen) years and 7 (seven) months old when she alleged rape by the appellants on 20.10.2012. Her date of birth is 03.03.1996. At the relevant time she was studying in Class-XII in a Government High School and her mother was working as an Attendant in a private hospital and was living separately from her husband and staying in her parental house, thus indicating that the victim girl does not belong to a very well to do family and she was a growing up girl, not yet crossed adolescence and certainly cannot be said to be fully matured person. Under the Juvenile Justice (Care and Protection of Children) Act, 2000, if were applied to the case, the Prosecutrix certainly would have been a "child" or a "juvenile" as she had not completed eighteen years of age at that time. 8. On the other hand, the appellant William was about 27 years and was serving in the Police Department as a Commando/Driver and the other appellant Tarun was also about 26 years old and was a professional singer/actor. Thus, it would not be wrong to say that these two appellants are fully grown matured persons and worldly wise, whereas, the victim girl though had just crossed the threshold of her childhood and entered adulthood in terms of the Indian Penal Code, was still a "child" within the meaning of Juvenile Justice Act, 2000. 9. Other relevant facts which can be garnered from the evidence are that both the appellants were close friends and had become acquainted with the Prosecutrix only for about a month prior to the incident. The time reference of their acquaintance with the Prosecutrix goes back to when the Panchayat elections were held in Manipur sometime in September, 2012. Thus, though the appellants and the victim girl got acquainted, it cannot be said that they had been knowing one another for a long period of time, so as to indicate a very close friendship or acquaintance. Even if the appellants claimed to have known the victim girl before the incident, which was for about a month or so, it was never stated by any of the appellants in their statement made under section 313 of Cr. P.C., 1973 that they or either of them were having intimate and close relationship with the victim girl which could be indicative of the existence of any consensual sexual relationship. In absence of there being a close and intimate relationship, consent for sexual intercourse cannot be easily inferred. It must be clearly discernible. 10. Keeping the aforesaid peculiar facts of the case in mind, we may proceed to examine the evidences which were placed before the trial court. 11. As will be evident from the evidence adduced before the Trial Court, the star witness of the case is the Prosecutrix herself and the prosecution sought to corroborate her testimony by that of the restaurant owner and other witnesses and other evidences collected, including medical evidence. 11. As will be evident from the evidence adduced before the Trial Court, the star witness of the case is the Prosecutrix herself and the prosecution sought to corroborate her testimony by that of the restaurant owner and other witnesses and other evidences collected, including medical evidence. There is no other eye witness, except the owner of the restaurant who is an independent witness and who was in the proximity of the scene and claimed to have seen the appellant Tarun engaging in sexual intercourse and also testified about the unstable physical condition of the prosecutrix. The only other persons present and who were privy to the incident in issue were the appellants themselves. They have denied the charges but they have chosen not to adduce any evidence. As the conviction of the appellants is primarily based on the testimony of the Prosecutrix, the owner of the restaurant and medical evidence and other corroborating evidences, the reliability of the evidences of the Prosecutrix as well as the restaurant owner has been severely questioned and put to microscopic scrutiny by the appellants. 12. According to the appellants, the evidence of the Prosecutrix is unreliable, full of embellishments and inconsistencies apart from contradictory statements made in course of the investigation. Thus, if the very testimony of the Prosecutrix is suspect and unreliable, the entire case of the prosecution would fall flat as the other evidences are merely corroborative of the testimony of the Prosecutrix. 13. Perusal of the testimony of the victim girl before the Trial Court would reveal that she became acquainted with the appellant Tarun during the Panchayat elections held in September, 2012 in the residence of one candidate. She claimed that she was warned by friends that the appellant Tarun had a weakness for girls and had earlier eloped with a girl because of which, she was not very keen to continue their acquaintance. Later on, one day, she was introduced to the appellant William as a Police commando in the house of a friend in the locality. During the said meeting, the appellant Tarun offered Appy (cold drink) to the victim girl but felt unusually bitter and stopped drinking the said cold drink. She also stated that one Premlata (PW 2), the younger sister of the husband of the Pradhan who got elected had encouraged her to be friendly with the appellant William. 14. During the said meeting, the appellant Tarun offered Appy (cold drink) to the victim girl but felt unusually bitter and stopped drinking the said cold drink. She also stated that one Premlata (PW 2), the younger sister of the husband of the Pradhan who got elected had encouraged her to be friendly with the appellant William. 14. She stated that on 20-10-2012 in the morning at around 8:30 a.m., the appellant William called her up to enquire whether she would be attending the school or not, to which, she replied that she may not be attending as her friend Purnima, with whom she usually goes to school had fallen sick. The appellant William called her up again to which she decided to meet him to clarify and not to bother her in future. Whereupon, as told by the appellant William, she went to a place where she was picked up by William in a Maruti 800 car. After driving around some place, the appellant William stopped the car at a place where some police personnel were present and got down and came back after a few minutes and put something in the back seat of the car of which she did not pay much attention. Thereafter, it was proposed by the appellant William that they visit Kakching Garden which she refused as it was a far away place. Thereafter, when they reached near Raj Bhavan, the appellant William called up the appellant Tarun to meet them at a nearby place to which the Prosecutrix asked why he should come also to which, the appellant William replied that he is a good friend. Thereafter, the appellant Tarun was picked up on the way and they proceeded towards the Airport and stopped in front of a restaurant. The appellant Tarun first went restaurant. As the said restaurant was found to be made of kutcha structure, she expressed her unwillingness to go to there, whereupon, the appellant William told her that the family members of the owner were residing there and that there was nothing to worry about. As she was wearing a school uniform, the appellant William gave his shirt to the victim girl and she also went inside the hotel believing that the family members of the restaurant owner were residing. When they reached the restaurant, she found the appellant Tarun already sitting in the counter of the manager. 15. As she was wearing a school uniform, the appellant William gave his shirt to the victim girl and she also went inside the hotel believing that the family members of the restaurant owner were residing. When they reached the restaurant, she found the appellant Tarun already sitting in the counter of the manager. 15. Thereafter, appellant William led her to one of the cabin rooms, where Tarun also joined and both insisted her to drink a juice inspite of her reluctance. After sometime, she felt drowsy but was made to drink three glasses of the juice, because of which she felt loss of strength. She gradually lost her consciousness and when she regained her consciousness, she felt that appellant William was sexually assaulting her but she was too shocked and weak to resist. She also claimed that appellant Tarun also sexually assaulted her. She also stated that the appellant Tarun compelled her to use her hands to play with his penis. When she started crying, the appellant Tarun threatened her that all those acts would be uploaded in the internet. She also stated that William had sexual intercourse with her several times. She deposed that both the appellants had penetrative vaginal sex with her, against her will and consent. She also deposed that after the said sexual intercourse, the appellant William washed her private parts with water. She also stated that she had vomited in the said cabin of the restaurant. She also stated that she could not stand properly and at the time of leaving she was helped by appellant William by supporting her and was made to sit in the backseat of the car along with the appellant William before being dropped at the place near Jawaharlal Nehru Institute of Medical Sciences, from where she was picked up by Premlata (PW 2), the sister in law of the Pradhan at whose house the Prosecutrix and the appellants had earlier met and she was later handed over to the mother of the Prosecutrix, (PW 1) and her uncle (PW. 8). Thereafter, she was taken to residence of her aunt (sister of her mother) where she fell asleep. When she got up at around 9:30 p.m. she sent an SMS to appellant William to call up asking him and Tarun to come with the intention to kill both of them and commit suicide herself but they did not come. 8). Thereafter, she was taken to residence of her aunt (sister of her mother) where she fell asleep. When she got up at around 9:30 p.m. she sent an SMS to appellant William to call up asking him and Tarun to come with the intention to kill both of them and commit suicide herself but they did not come. She also stated that she narrated about the incident to her aunt and mother but did not initially mention about the involvement of appellant Tarun, out of fear of what the public may think if they came to know that she was sexually assaulted by two persons. The next day FIR was lodged by her mother. 16. The relevant portions of the testimony of the Prosecutrix are reproduced herein below: “.........The said hotel lies on the western side of the Tiddim Road and so far as my knowledge; the said hotel is facing Eastern Side. Then William led me towards a cabin located on the north-westernmost side from the main door of the hotel and then he went out of the room and thereafter, I heard a sound of another person talking with William and I think that it might have been the Manager of the said hotel. After some time William came again and told me that Accused Tarun is sitting alone and suggested to let him join us. I refused to the suggestion but William dragged me by holding my hand and entered inside a room which was located on the south western corner of the hotel. Inside the said room, I found two tables and one wooden Sofa and I also found one plate of omlette and three glass of juice. Thereafter, the manager brought one plate of Chowmein. Both William and Tarun insisted me to drink the said juice even though I refused to have since I remembered the earlier occasion of offering me an Appy mixed with wine by accused Tarun. Due to their pressure, I had one glass of juice and immediately, I felt very hot in my throat and I also complained to them about being very hot in my throat after drinking the juice. At that time, accused Tarun gave me a spoon of chowmein by telling that it will help in subsiding the hot sensation. After having the chowmein, I felt a little better. At that time, accused Tarun gave me a spoon of chowmein by telling that it will help in subsiding the hot sensation. After having the chowmein, I felt a little better. But a little later, I started feeling drowsy coupled with loss of strength. Then, I told them about my drowsiness and at that time, accused Tarun told me to lean onto accused William. At that time, accused Tarun told William to kiss me in front of him but I resisted. But suddenly, one of them forcefully made me drink 3 glasses of the said juice and at that time, I had no strength to resist them due to loss of strength. After some time, I lost all my strength and fell down on the wooden sofa and in which I struck my head on the handle of the sofa thereby losing consciousness. When I regained my senses, I felt that I had been sexually assaulted/sexually intercourse by somebody but I could not restrain the act due to complete loss of strength. However, I manage to open my eyes and found that I was fully naked waist-down wearing a string on the upper half of my body and also that William was having intercourse/sexually assaulting me. On seeing the act of William, I was very shocked and again fell unconscious. When I again regained consciousness, I found accused Tarun sexually assaulting me and at that relevant time William was also standing beside us. The accused Tarun after completing the sexual intercourse upon me, used my hands to play with his penis by lifting my right hand. On seeing the acts of the accused Tarun, I felt very shocked and started crying ad at that time the accused Tarun threatened me by saying that all the acts happened on that day will be uploaded in the internet. Thereafter accused Tarun went out of the room and after some minutes, accused William entered in the said room and on seeing me crying he told that he went to the toilet on his thinking that my crying was due to his absence. The accused William again had sexual intercourse with me without my consent and while doing so, accused Tarun also entered inside the room and he told to William that he felt very ashamed today. The accused William again had sexual intercourse with me without my consent and while doing so, accused Tarun also entered inside the room and he told to William that he felt very ashamed today. The witness volunteers to say that during the said sexual intercourse by both the accused, William and Tarun, they had penetrated their respective penis to my vagina. The witness also volunteers to say that, while I entered in the said room earlier, there was no partition behind the sofa but after I regained my consciousness, I found one partition made of Plywood on the northern side of the wooden sofa, where I was lying." 17. Her evidence in material areas is supported by the owner of the restaurant, Mr. Oinam Bimolchandra, aged about 33 years, who was examined as PW 3. He testified about the visit of both the appellants along with the Prosecutrix to his restaurant. He also testified seeing appellant William and the Prosecutrix in an embracing position. He also saw appellant Tarun naked and his body moving as if having sex and heard the girl crying. He also saw the girl, the Prosecutrix, vomiting and also being taken away supported by the appellant William. He also stated that at the time when they left, the girl could not properly stand and at one time fell down on the floor near in the restaurant and the appellant William supported the girl on her back to the car. After they left, he went to clean the leftover. He found remains of vomit along with a bottle, 'White Magic', which is a brand of gin, an alcoholic drink. He also stated that the police seized the bottle "White Magic" from the restaurant on 22.10.2012. 18. The relevant portions of the testimony of PW 3, the owner of the restaurant are reproduced herein below: "..............On 20.10.2012, at about 8.30/9 a.m., the accused William made a telephonic call to me and requested me to come at my restaurant. On the same day, at about 11 a.m., the accused Tarun called me through his mobile, while I was at a nearby shop to purchase cooking oil and he informed me that he was already in my restaurant. On the same day, at about 11 a.m., the accused Tarun called me through his mobile, while I was at a nearby shop to purchase cooking oil and he informed me that he was already in my restaurant. On my return at my restaurant, I found accused Tarun Singh sitting in my counter by listening to FM programme and thereafter I came to know that the accused William Singh was sitting in a room of my restaurant along with a girl. But they were sitting inside the said cabin without my prior permission. While I was sitting along with accused Tarun in my counter, the accused William came out from the cabin and requested me to give cold drink (APPY). Then, I entered inside the room of my restaurant, which is located on the south-westernmost side of my restaurant and I served them with 2 Apply and a bottle of water (litre) and a glass. At that moment, I saw the said girl sitting in civil dress by wearing a Jeans Short Skirt and a T-shirt with a blue coloured 'Chapal'. I saw the accused William and the girl's armed interlocked when I entered the room but they separated as soon as I entered. After I kept the above said items, William again ordered me to supply Omelet and I left. After I prepared the Omelet, I entered to the room to serve the same, but I found the previous items transferred to another table located at a distance of about 2 ft. from them and then I left the omelette on the table to which they had already transferred the previous items. William then ordered a plate of Vegetable Chow. After about 15/20 minutes, accused William called Tarun to the room by coming out from the cabin and then Tarun went inside the said cabin. The preparation of the Chow took about 15 minutes and later on, when I entered the room again to serve the vegetable chow, I saw William and the said girl sitting in the previous positions while Tarun sitting on the table and they were talking amongst themselves. The preparation of the Chow took about 15 minutes and later on, when I entered the room again to serve the vegetable chow, I saw William and the said girl sitting in the previous positions while Tarun sitting on the table and they were talking amongst themselves. " ........After about 1:30/2 pm, the accused William came out from the cabin while I was in my counter and told me that, "Taruna asigi nupise kayamuk yamna pammurabano khangde, eingonda haiphet yetlihe" (I don't know how much Tarun likes the girl, he very much disturbs me) and then he went back inside the room. Being suspicious, I entered the middle room after entering from the first room and peeped through the curtain. There I saw the accused Tarun Singh naked (as seen from behind) facing North-West while William was standing on the left side of Tarun. I also saw the clothes of Tarun hanging on the arm of the chair on which William was previously sitting with the girl. The peeping might have been for about 4/5 seconds only. At the moment, I saw Tarun, his body was moving to and fro (as if having sex) and I heard the girl crying. I, however, did not see the girl. Thereafter, I came out from the room and on seeing the said scene, I was alarmed/tensed and then I called William through his mobile phone but he did not respond. I also called Tarun through his mobile phone but he did not respond too. After some time, Tarun came out from the cabin and asked for water and then I gave him a bottle of drinking water but Tarun told me that he needed water for washing purpose and as such, I took an empty bottle, filled in with water from a bucket and gave it to Tarun. Then Tarun went inside the cabin. After a few minutes, Tarun came out and sat near me at my counter and at that relevant time, one phone call came to the mobile of accused Tarun and in the conversation, Tarun told to the caller that he is going for Music Rehearsal and then went inside the middle room and lay on a wooden Sofa and continued conversing over his mobile phone. In the meantime, William suddenly shouted out saying "keidourige", hearing which I went towards the third room, took permission from William and then entered the room. When I entered inside the room, I found the said girl wearing School Uniform of T.G. Higher Secondary School and she was standing by leaning onto William, as she was not in a position to stand all by herself. William then told me, "Masi Khudingmak Thoknabase Taruna Sillibani." Then I told William that they cannot leave my restaurant wearing the uniform of T.G. Higher Secondary School and then came out and sat at my counter. After some time, Tarun came out followed by the girl and William from inside the room. The girl was wearing the dress (Jean skirt) which she wore at the time I entered the room (restaurant's) for the first time but the shirt was that of the school uniform. At that time, the girl was feeling nauseous and attempted to vomit with the help of accused William but she could not fully vomit. William then ask me to look for passersby of which I rejected. The timing for their departure would have been around 4.30 p.m. in the evening. William left the girl near the counter before departure and she fell down on the floor. Thereafter, I called William and William came back immediately and held her up and went out supporting the girl on the back. Then, the two accused along with the girl drove left the place on their Maruti-800. After they left, I went inside the room to clean up the leftovers (using the light from my mobile) and I found remains of vomit along with a bottle of "White Magic". I got a bucket of water and washed the carpet and other leftovers and then disposed of the bottle of "White Magic" in nearby thrash area. ......On 23.10.2012, 10/10.30 a.m., a party of Lamphel P.S. came to my restaurant and asked me whether one William and Tarun sat/used my restaurant room on 20.10.2012. I replied affirmatively. The police further asked me whether they used intoxicant mixed with cold drinks to which I replied saying that I found a bottle of "White Magic" from the room occupied by them and pointed out the said bottle in the thrash area. I replied affirmatively. The police further asked me whether they used intoxicant mixed with cold drinks to which I replied saying that I found a bottle of "White Magic" from the room occupied by them and pointed out the said bottle in the thrash area. Thereafter, the police picked up the said bottle of "White Magic" and seized the same by preparing a seizure memo......." 19. Thus, the testimony of the PW 3, the owner of the restaurant clearly corroborates the evidence of the Prosecutrix in crucial aspects, viz. relating to the fact that the two appellants and the Prosecutrix were in the said restaurant and of sexual activity inside the restaurant. He saw the appellant Tarun engaged in an act which clearly indicated sexual intercourse with the Prosecutrix, though he had not seen the girl. He also witnessed the unstable condition of the Prosecutrix before she left the restaurant along with the appellants which is corroborative of the claim of the Prosecutrix that she was given intoxicating drinks. He also stated that he found a bottle "White Magic" which is a brand of "Gin" from the cabin where the appellants and the girl spent time together, which was subsequently seized by the police. This evidence would prove that the Prosecutrix was made to consume some intoxicating drink by the appellants and taking advantage of her intoxicated condition, the appellants raped her. Whether, the appellants had engaged in sexual intercourse with the Prosecutrix and whether it was without her consent is the crux of the issue to be decided in these appeals. 20. The appellants have denied that the appellants had sexual intercourse with the Prosecutrix. The limited sexual intimacies which the appellant William admitted to have had with the Prosecutrix was also claimed to be consensual. The appellants have sought to discredit both the testimonies of the Prosecutrix and the owner of the restaurant on the charge of rape. The defence had tried to discredit the testimony of the owner of the restaurant on the ground that the police had pressurised him with the threat of being charged as a Co-accused. 21. Before we examine the reliability, trustworthiness of the evidence of the Prosecutrix, it may be relevant at this stage to know what according to the appellant William had happened on the fateful day as stated in his statement made under Section 313 Cr. 21. Before we examine the reliability, trustworthiness of the evidence of the Prosecutrix, it may be relevant at this stage to know what according to the appellant William had happened on the fateful day as stated in his statement made under Section 313 Cr. P.C., 1973 relevant portions of which are reproduced herein below: "I was introduced to (*......) at one Chand's home and thereafter, we started talking to each other in our mobile phones and we had a relationship of boyfriend and girlfriend. However, due to my paucity of time as I, being a Commando Pilot, did not get time to go out for a date with her. And as such, she was angry against me for not being able to go out for a date with her. One day, she even proposed to me either to come to the school personally or send one of my friend and pose as a brother of one of her friend and she will be able to come out with her friend for a date. However, I dropped her idea saying that it wouldn't be possible. We frequently met at the residence of Echan Devi for the election purpose as she used to visit Eehan's residence, Whenever we met at Echan's residence, we used to hold our hands whenever we get the opportunity. We also talk frequently in our mobile phones, talking about our future lives. On 19.10.2012, we went for a house, which was held at nearby the residence of (*......). When I along with my friends went at the venue of the housie, (*......) was already sitting there with her mother and some others. I sat down beside her and we talked for some time. I also bought some eatables and gave it to her and her mother. While chatting with (*......), we fixed for a date for the following day, i.e., 20.10.2012. She told that she would come out without attending her school along with her friend. However, my friend Tarun picked up some quarrel with some local youths and as such, I also went to see as with whom Tarun was quarrelling. (*......) followed me and while I was seeing the scene, (*......)caught hold of my arms and told me to go away from the place. (*......)'s mother also told me to leave the place. As such, I along with my friends came out from the housie venue. (*......) followed me and while I was seeing the scene, (*......)caught hold of my arms and told me to go away from the place. (*......)'s mother also told me to leave the place. As such, I along with my friends came out from the housie venue. On 20.10.2012, I called up (*......) and she told me that she is waiting at Soibam Leikai, near Citizen Club. I went and picked her up and also picked Tarun up from Khagempalli Pankha and went to Tampha Fast Food. As she was wearing school uniform, I gave her my man-shirt to wear over her uniform. Then, we entered the Fast Food and sat at the south-westernmost corner. Thereafter, we hugged and smooched each other. Thereafter, the owner of the restaurant came and we sat afar so as to look normal that we were not having any intimacy. Thereafter, I ordered two "APPY" and a bottle of mineral water. The restaurant owner served the same and I again ordered for a chowmein and an omlette. It was also served by the restaurant owner. Thereafter, I called Tarun and he entered the room and had one APPY and holding that APPY, Tarun went out of the room. Thereafter, we were having privacy and started kissing each other, she then sucked my penis and I ejaculated. In that, she spitted on the floor saying that I have swallowed some semen and I felt like vomiting. At around 1 to 2 p.m., 2 calls came at her mobile phone from her mother. Surprisingly, I asked her why her mother was calling at this odd hour as this is school time. To that, she did not give proper reply and switched off her phone. Thereafter, we talked for some time and we came out from the Fast Food. Tarun drove the car and (*......) and I sat on the rear seat and dropped her at Porompat, near Babina Clinic. Thereafter, I called Premlata and she enquired whether (*......) was with me and where we were. I said yes and told her that we were at Porompat, near Babina Clinic. She then told me to wait for her and that she is coming to pick (*......) up. She came and they went together. Thereafter, I and Tarun came back to Tarun's residence. I said yes and told her that we were at Porompat, near Babina Clinic. She then told me to wait for her and that she is coming to pick (*......) up. She came and they went together. Thereafter, I and Tarun came back to Tarun's residence. Then, we went to my house and then went for musical nite at Thanga for musical performance by Tarun. While we were going for the musical nite, (*......)'s aunt, namely, Kiranbala called me up on my mobile and told me to come to her place. However, I told her that I am in some far off place and would not be able to come. To that, she threatened me that I would be removed from my service and would face dire consequences. While I was at Thanga, (*....) sent me an SMS saying to give her a call. When I called her up, she told me that, "I am not involved and I don't know anything but my mother has built up a mob and is making a big issue" On the next day i.e., 21/10/2012 in the evening, as informed by Echan Devi to go to Porompat P.S. as there is a case against me, I went to the Porompat PS. and came to learn that (*......) and her mother was trying to file a false case against me. On seeing the mother of (*......), I fell at her feet and told her that I am ready to marry (*......), However. (*......)'s mother replied that, "William, I like you but the time for you is over". Thereafter, I and Tarun was detained at Porompat P.S." * Name of the victim. 22. The aforesaid statement of the appellant William shows that the girl and the appellant were in friendly terms but did not suggest a close and intimate relationship or that prior to the incident, or they had engaged in intimate sexual acts. The fact that they spent some private moments in the restaurant is admitted by the appellant William, at least engaging in oral sex. It may however be noted that William did not state that he was keen or was proposing to have a long term relationship with the Prosecutrix. It was at best a casual relationship and not an intimate relationship. 23. It may however be noted that William did not state that he was keen or was proposing to have a long term relationship with the Prosecutrix. It was at best a casual relationship and not an intimate relationship. 23. The crucial issues in this case are, whether there was sexual intercourse by the appellants with the Prosecutrix and if so, whether it was without her consent? The Prosecutrix says so. It is in this situation that the appellants have contended that the testimony of the Prosecutrix is unreliable and since it is also not fully corroborated, cannot be the basis for conviction of the appellants. 24. It is now well settled in criminal jurisprudence that the onus is entirely on the prosecution to prove the charge against the accused and at no point of time, the burden shifts to the accused except where the statute or the law requires to do so. In the present case also, the prosecution in order to establish the charges against the appellants of rape has to prove that the appellants had engaged in sexual intercourse with the Prosecutrix against her will or without her consent or though with her consent but at the time of giving such consent by reason of unsoundness of mind or intoxication, she was unable to understand the nature and consequence of that to which she gave consent, so as to constitute the offence of rape under Section 375 IPC and punishable under Section 376 IPC. In the present case also, the prosecution has to prove beyond reasonable doubt that the offence of rape had been committed on the victim girl. 25. In this regard, we may briefly refer to the legal position of burden of proof on the prosecution to establish the charge. It was held in Chandran @ Manichan @ Maniyan v. State of Kerala (04.04.2011-SC) that, "21. Coming to the burden of proof, the Court observed that though in civilized criminal jurisprudence the accused is presumed to be innocent unless he is found guilty and though the burden of proof always is on the prosecution to prove the offence beyond reasonable doubt yet the rule gets modulated with the march of time. ........... Further the Court also referred to C.S.D. Swamy v. The State, (1960) 1 SCR 461 and commented on the presumptions raised under the Prevention of Corruption Act. ........... Further the Court also referred to C.S.D. Swamy v. The State, (1960) 1 SCR 461 and commented on the presumptions raised under the Prevention of Corruption Act. The Court observed in para 39 as under: 39. It is the cardinal rule of our criminal jurisprudence that the burden in the web of proof of an offence would always lie upon the prosecution to prove all the facts constituting the ingredients beyond reasonable doubt. If there is any reasonable doubt, the accused is entitled to the benefit of the reasonable doubt. At no stage of the prosecution case, the burden to disprove the fact would rest on the defence. However, exceptions have been provided in Sections 105 and 106 of the Evidence Act, as stated hereinbefore. Section 113A of the Evidence Act raises a presumption as to abatement of suicide by a married woman by her husband or his relatives. Similarly Section 114A raises presumption of absence of consent in a rape case. Several statutes also provided evidential burden on the accused. On the general question of the burden of proof of facts within special knowledge of the accused, this Court, in Shambu Nath Mehra v. State of Ajmer, (1956) SCR 199, laid the rule thus: Section 106 of the Evidence Act does not abrogate the well-established rule of criminal law that except in very exceptional classes of cases the burden that lies on the prosecution to prove its case never shifts and Section 106 is not intended to relieve the prosecution of that burden. On the contrary, it seeks to meet certain exceptional cases where it is impossible, or a proportionately difficult, for the prosecution to establish facts which are especially within the knowledge of the accused and which can be proved by him without difficulty or inconvenience." (emphasis added now) 26. It is also equally well settled that unlike other criminal offence, a woman who is a victim of sexual assault is not an accomplice to the crime and as such, conviction can be based on the sole testimony of the victim, if found to be reliable by itself and no corroboration of her evidence is necessary. In other words, the sole evidence of the Prosecutrix can sustain conviction, which would not require corroboration. In other words, the sole evidence of the Prosecutrix can sustain conviction, which would not require corroboration. It is only by way of abundant caution that the Court may look for some corroboration so as to satisfy its conscience and rule out any false accusations, as held by the Hon'ble Supreme Court in State of Uttar Pradesh v. Chhotey Lal, (2011) 2 SCC 550 as below: "22. In the backdrop of the above legal position, with which we are in respectful agreement, the evidence of the Prosecutrix needs to be analysed and examined carefully. But, before we do that, we state, as has been repeatedly stated by this Court, that a woman who is a victim of sexual assault is not an accomplice to the crime. Her evidence cannot be tested with suspicion as that of an accomplice. As a matter of fact, the evidence of the Prosecutrix is similar to the evidence of an injured complainant or witness. The testimony of the Prosecutrix, if found to be reliable, by itself, may be sufficient to convict the culprit and no corroboration of her evidence is necessary. In prosecutions of rape, the law does not require corroboration. The evidence of the Prosecutrix may sustain a conviction. It is only by way of abundant caution that the Court may look for some corroboration so as to satisfy its conscience and rule out any false accusations." 27. It may be also noted, the Supreme Court in State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 had indicated the manner in which the Court to has to deal with cases of sexual offences in the following words. "15. It is necessary at the outset to state what the approach of the court should be while evaluating the prosecution evidence, particularly the evidence of the Prosecutrix, in sex offences. Is it essential that the evidence of the Prosecutrix should be corroborated in material particulars before the court bases a conviction on her testimony? Does the rule of prudence demand that in all cases save the rarest of rare the court should look for corroboration before acting on the evidence of the Prosecutrix ? Let us see if the Evidence Act provides the clue. Does the rule of prudence demand that in all cases save the rarest of rare the court should look for corroboration before acting on the evidence of the Prosecutrix ? Let us see if the Evidence Act provides the clue. Under the said statute 'Evidence' means and includes all statements which the court permits or requires to be made before it by witnesses, in relation to the matters of fact under inquiry. Under Section 59 all facts, except the contents of documents, may be proved by oral evidence. Section 118 then tells us who may give oral evidence. According to that section all persons are competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Even in the case of an accomplice Section 133 provides that he shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However, illustration (b) to Section 114, which lays down a rule of practice, says that the court 'may' presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Thus under Section 133, which lays down a rule of law, an accomplice is a competent witness and a conviction based solely on his uncorroborated evidence is not illegal although in view of Section 114, illustration (b), courts do not as a matter of practice do so and look for corroboration in material particulars. This is the conjoint effect of Sections 133 and 114, illustration (b). 16. A Prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the Prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the Prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the Prosecutrix must necessarily depend on the facts and circumstances of each case. But if a Prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the Prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a Prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage: "It is only in the rarest of rare cases if the court finds that the testimony of the Prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary." With respect, the law is not correctly stated. If we may say so, it is just the reverse. If we may say so, it is just the reverse. Ordinarily the evidence of a Prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation. 17. We think it proper, having regard to the increase in the number of sex violation cases in the recent past, particularly cases of molestation and rape in custody, to remove the notion, if it persists, that the testimony of a woman who is a victim of sexual violence must ordinarily be corroborated in material particulars except in the rarest of rare cases. To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Ours is a conservative society where it concerns sexual behaviour. Ours is not a permissive society as in some of the western and European countries. Our standard of decency and morality in public life is not the same as in those countries. It is, however, unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. An Indian woman is now required to suffer indignities in different forms, from lewd remarks to eve-teasing, from molestation to rape. Decency and morality in public life can be promoted and protected only if we deal strictly with those who violate the societal norms. The standard of proof to be expected by the court in such cases must take into account the fact that such crimes are generally committed on the sly and very rarely direct evidence of a person other than the Prosecutrix is available. Courts must also realise that ordinarily a woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity. 18............... 19. Courts must also realise that ordinarily a woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity. 18............... 19. It is time to recall the observations of this Court made not so far back in Bharwada Bhoginbhai Hirjibhai : (SCC p. 224, para 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. We must analyse the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focused on the Indian horizon. We must not be swept off the feet by the approach made in the western world which has its own social milieu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society, and its profile. The identities of the two worlds are different. The solution of problems cannot therefore be identical." Proceeding further this Court said : (SCC pp. 225-26, para 10) "Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault ...... The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because (1) A girl or a woman in the tradition-bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracised by the society or being looked down by the society including by her own family members, relatives, friends and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition-bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross-examination by counsel for the culprit, and the risk of being disbelieved, acts as a deterrent." 20. We are in complete agreement with these observations." 28. (12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross-examination by counsel for the culprit, and the risk of being disbelieved, acts as a deterrent." 20. We are in complete agreement with these observations." 28. The aforesaid principles were reiterated in State of U.P. v. Chhotey Lal, (2011) 2 SCC 550 : (2011) 2 SCC (Cri) 674 in the following words : "28. This Court went on to observe at SCC pp. 225-26: (Bharwada case, SCC para 10) "10. Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because- (1) A girl or a woman in the tradition-bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracised by the society or being looked down by the society including by her own family members, relatives, friends, and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition-bound society where by and large sex is taboo. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition-bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross-examination by the counsel for the culprit, and the risk of being disbelieved, acts as a deterrent." 29. Thus the following principles, inter-alia, can be deduced from the above decision, Firstly, the victim is not be placed at par with an accomplice and her evidence must receive the same weight as is attached to an injured person. Secondly, conviction can be based on the sole testimony of the victim and the Court need not insist on corroboration, unless there are special circumstances which call for greater caution. Thirdly, generally rarely a girl or a woman who has been raped would make false allegation of rape. 30. Keeping the aforesaid legal position in mind, we may evaluate the evidence of the Prosecutrix. From the testimony of the Prosecutrix the following can be gathered: (i) The Prosecutrix came to restaurant along with both the appellants and she was taken to a cabin in the restaurant. (ii) Both the appellants insisted on her to drink some juice. (iii) After drinking it she felt hot sensation on throat. She felt drowsy after some time coupled with loss of strength. (iv) After sometime, one of the appellants forcefully made her drink 3 glasses of the said juice. (v) Thereafter, she partially lost consciousness and could not control herself. (vi) It was during that condition that the appellants had sexual intercourse with the Prosecutrix without her consent. She felt drowsy after some time coupled with loss of strength. (iv) After sometime, one of the appellants forcefully made her drink 3 glasses of the said juice. (v) Thereafter, she partially lost consciousness and could not control herself. (vi) It was during that condition that the appellants had sexual intercourse with the Prosecutrix without her consent. (vii) During the aforesaid period, feeling shocked and helpless, the Prosecutrix cried. (viii) One of the appellants, Tarun forced her to masturbate him and even threatened her that the acts will be uploaded in the internet. (ix) After the sexual intercourse she vomited. (x) She could not stand properly at the time of departure from the restaurant. She was helped and supported by William and was made to seat in the rear seat along with the appellant William. (xi) On the way back she was given lemon and made to drink lemon juice. (xii) After she reached home (of her aunty), she fell asleep. 31. It is accepted by all and not denied by any of the appellants that the Prosecutrix had gone to the restaurant with the appellants and they were in one of the cabins of the restaurant. Appellant William has also not denied the fact that there was some sexual activity between the Prosecutrix and him, though the appellant Tarun has taken the plea of not guilty and has chosen to remain silent. There is clear evidence to the fact that both the appellant William and the girl had spent some private moments in the cabin of the restaurant. He claims that the Prosecutrix performed oral sex on him. Therefore, the fact that both had engaged in some sexual activities is established. The issue is whether they had sexual intercourse and that too without the consent of the Prosecutrix, thus amounting to rape. The Prosecutrix asserts that both the appellants had engaged in sexual intercourse with her against her consent. She claims that she was made to consume some juice after drinking of which she lost control of herself indicating that she was under the influence of intoxication and during that time the appellants had intercourse with the Prosecutrix. 32. What are the evidences of sexual intercourse, which according to the Prosecutrix, was against her consent in this case? First of all, it is the statement of the victim Prosecutrix herself who alleged rape by the appellants. 32. What are the evidences of sexual intercourse, which according to the Prosecutrix, was against her consent in this case? First of all, it is the statement of the victim Prosecutrix herself who alleged rape by the appellants. She has categorically stated that both the appellants had sexual intercourse with her against her consent when she was under the influence of certain intoxicating drink. She testifies that the appellants had sexual intercourse with her when she was in a state of semi consciousness because of the intoxicating drink she was made to consume. Appellant Tarun also told her that if she did not comply, the pictures would be uploaded in the internet. As discussed above, the statement of the girl who is a victim of sexual assault is not an accomplice to the crime and her evidence cannot be viewed with suspicion as that of an accomplice. The testimony of the Prosecutrix is the best evidence and if found to be reliable, by itself, may be sufficient to convict the culprit and no corroboration of her evidence is necessary. In prosecution for rape, the law does not require corroboration. The evidence of the Prosecutrix may sustain a conviction. It is only by way of abundant caution that the Court may look for some corroboration so as to satisfy its conscience and rule out any false accusations. [vide Chhotey Lal (supra) etc.] Secondly, the statement of the Prosecutrix is corroborated by the medical report. The Prosecutrix was medically examined on 22-10-2012 at about 1:10 p.m. As per the medical report, fresh tears at 4 and 7 o' clock positions with red margins were found in the hymen and the medical doctor gave the opinion that there was evidence of recent sexual intercourse. It may be also mentioned that the doctor who examined both the appellants found that though no definite information can be given as to whether they had performed recent sexual intercourse in the ordinary way, there is nothing to suspect about their potency. It, therefore, indicates that the appellants were capable of sexual intercourse. The medical information was sought to be discredited by suggesting that the genital injuries in the vulva and the hymens were old but the medical officer stated that the said injuries were less than one week old on 22.10.2012. It, therefore, indicates that the appellants were capable of sexual intercourse. The medical information was sought to be discredited by suggesting that the genital injuries in the vulva and the hymens were old but the medical officer stated that the said injuries were less than one week old on 22.10.2012. It was also suggested that there was a possibility for causing the said injuries by insertion of fingers. It may however, be noted that merely because there was a possibility of the injuries being caused by the fingers, cannot render the statement of the victim unreliable, in absence of any other cogent evidence, and there is none in this case. It may be also mentioned that the Prosecutrix had told the Medical Officer that on 20.10.2012 while she was going to School, the accused whom she had known for about a month through phone and his friends, took her in a car to a restaurant at Changangei, where he offered her drinks telling her it was juice and while she was in a semi conscious state, raped her. She also stated that Tarun also accompanied them and joined in drinking but stayed in another room while the accused William raped her. After that, she was taken near her house and left in the care of her aunt, Premlata Devi. The statement made by the Prosecutrix to the Medical Officer and recorded by the Medical Officer soon after the incident can be said to be contemporaneous evidence which substantially corroborates what the Prosecutrix testified before the Court, except for the charge she made against Tarun subsequently that he also raped her. This piece of contemporaneous evidence is certainly an admissible and relevant one which supports the Prosecution. 33. The other corroborating evidence is that of the owner of the restaurant who had seen Tarun having sexual intercourse and also testified about the unstable condition of the girl and recovery of the bottle "White Magic". 34. The appellants have strenuously argued that consumption of intoxication has not been proved at all on which basis it was claimed by the Prosecutrix that she lost control over herself and the appellants taking advantage of such debilitating condition raped her. In this regard, this Court has kept in mind the following facts. 34. The appellants have strenuously argued that consumption of intoxication has not been proved at all on which basis it was claimed by the Prosecutrix that she lost control over herself and the appellants taking advantage of such debilitating condition raped her. In this regard, this Court has kept in mind the following facts. Though consumption of intoxication has not been clinically proved, the fact remains that one bottle "White Magic", which is a brand of gin, an alcoholic drink was seized in the morning of 23.10.2012, which was recovered by the owner of the restaurant from the cabin where the appellants and Prosecutrix had spent time together. The seizure of the said bottle in presence of witnesses was proved. Even through the contents of the bottle as intoxicant was not proved, we are of the view that it would not affect the prosecution version because of the demeanour of the girl witnessed by the restaurant owner. The appellants have contended that the seizure of the bottle "White Magic" from the restaurant, which has been relied as one of the corroborating evidences has not been proved. It was contended by the appellants that the seizure memo exhibited as Ext. P-3 shows that the said bottle was seized at Tampha Fast Food, Ghari on the production of restaurant owner, the PW-3 in presence of the two witnesses, namely, Oinam Nabachandra Singh, who is the brother of the restaurant owner and one A.K. Boy Singh, a police personnel of Lamphel Police Station. It has been contended that though the said bottle was alleged to have been seized on production at the restaurant, the seizure witnesses stated before the Trial Court that the police prepared the seizure memo regarding the seizure of the bottle at Lamphel Police Station. Accordingly, it has been submitted that the seizure memo is a fabricated document, fabricated later on at the Police Station, as it was not prepared at the site where the said bottle was seized. It has been also contended that the witness did not put his signature on the bottle seized. Accordingly, it has been contended that since the seizure of the said bottle, "White Magic" has not been proved. Hence, the allegation of the prosecution that the Prosecutrix was made to consume intoxicating drink in the restaurant cannot be said to have been proved. 35. As regards this contention, the following may be noted. Accordingly, it has been contended that since the seizure of the said bottle, "White Magic" has not been proved. Hence, the allegation of the prosecution that the Prosecutrix was made to consume intoxicating drink in the restaurant cannot be said to have been proved. 35. As regards this contention, the following may be noted. True, the seizure memo (Ext. P/3) records that the place of seizure was at Tampha Fast Food, Ghari and not the police station. However, the seizure memo clearly mentions that the aforesaid bottle was seized on production of Oinam Bimolchand Singh, the restaurant owner in presence of two witnesses, Oinam Nabachandra Singh and AK Boy Singh. The restaurant owner, Oinam Bimolchand Singh in his testimony stated that the police picked up the said bottle of "White Magic" and seized the same by preparing a seizure memo in presence of witnesses and he also put his signature on the said seizure memo. He did not say that the seizure memo was prepared in the restaurant itself. The fact that the said bottle was seized from the restaurant was clearly stated by the said owner of the restaurant. The brother of the owner of the restaurant, who was witness to the seizure, stated in the following words:- "In the last part of the 2012, while I was staying at my home, I was called by one lady police officer and on reaching the hotel, my brother produced one bottle and handed it over to the police officer in my present. After that I along with police officer went to the Lamphel P.S. and the police officer prepared a seizure memo regarding the seizure memo of the said bottle at Lamphel P.S. in which I signed as a witness. Ext. P-3 is the seizure memo and the Ext.-3/2 is my signature . Ext. M.O.-1 is said bottle seized in presence of me. xxxx xxxxxx xxxxxxx I deny the suggestion that my brother Bimolchandra, PW No. 3 never produced any bottle from his hotel and also never handed it over to the police of Lamphel P.S. in connection with the present case. I also deny the suggestion that the police never prepared any seizure memo for the seizure of the said bottle , M.O-1 at Lamphel P.S.. I also deny the suggestion that I put my signature which is ext. I also deny the suggestion that the police never prepared any seizure memo for the seizure of the said bottle , M.O-1 at Lamphel P.S.. I also deny the suggestion that I put my signature which is ext. P-3/2 on a blank paper as asked by the police officer. I deny the suggestion that I deposed falsely." From the above, what is clearly evident is that the said seizure witness testified before the Trial Court that the said bottle was seized in the restaurant on production by the owner of the restaurant, who also is the brother of the said witness and it was handed over to the police officer in his presence. Thereafter, they went to the Lamphel Police Station where the police officer prepared the seizure memo on which the witnesses put their signatures. From the above, what transpires is that though the said bottle was seized at the restaurant on the production of the owner of the restaurant, the actual recording on the seizure memo was done at the police station. The mere fact that the seizure memo was prepared in the police station cannot render the seizure memo invalid. The mentioning of the place, "Tampha Fast Food, Ghari" in the seizure memo next to the word "Place" merely indicates the location from where the said bottle was seized and need not necessarily refer the place where the seizure memo was prepared. In any event, in view of the clear evidence of the owner of the restaurant that he produced the White Magic bottle from the restaurant and handed over to the police at the restaurant, which was also witnessed by the brother of the restaurant owner who put his signature as a witness, fully proved seizure of white magic bottle from the restaurant. Recording and preparation of seizure memo later in the case, does not make any difference as the witnesses were present both at the place of seizure and at the place of preparation of the seizure memo. The other seizure witness, AK Boy also testified about the seizure of the bottle with the name "White Magic" from the restaurant. It is not that they stated that they put their signatures after the bottle was produced at the Police Station. The other seizure witness, AK Boy also testified about the seizure of the bottle with the name "White Magic" from the restaurant. It is not that they stated that they put their signatures after the bottle was produced at the Police Station. The bottle was seized from the restaurant in their presence and they put their signatures in the Police Station after the seizure memo was prepared there. Thus the seizure of the bottle is proved. This Court also is of the opinion that merely because the witnesses did not put their signatures on the seized bottle, it cannot be doubted that the bottle produced before the Court was not the one seized. Accordingly, this Court does not find merit in the aforesaid contention of the appellants. 36. The Prosecutrix herself stated that she was compelled to consume juice which made her loose consciousness off and on and she could not control her limbs. This debilitating condition of the Prosecutrix is corroborated by the evidence of the owner of the restaurant. He not only testified during the trial that he witnessed the Prosecutrix vomiting. He also stated that before their departure from the restaurant, when William left the girl near the counter she fell down on the floor. Thereafter, he called William, who came back immediately and held her up and went out supporting the girl on the back to the car. Then, the appellants along with the girl left the place in the car. He also stated that after they left, he went inside the room to clean up the leftovers and found the remains of vomit along with a bottle of "White Magic". In his statement made under Section 164 Cr. P.C., 1973 the owner of the restaurant mentioned about the visit of the two appellants with the Prosecutrix. He also saw Tarun in a moving condition indicating having sex. He also stated about the vomiting by the girl and also stated that the girl was not in condition to walk. He also stated that the appellant William supported the girl while going out from the restaurant. The restaurant owner has more or less been consistent in his statements made before the police under Section 161 Cr. P.C., 1973 to the Magistrate under Section 164 Cr. He also stated that the appellant William supported the girl while going out from the restaurant. The restaurant owner has more or less been consistent in his statements made before the police under Section 161 Cr. P.C., 1973 to the Magistrate under Section 164 Cr. P.C., 1973 and his testimony before the Trial Court about recovery of the bottle 'White Magic", vomit as well as the condition of the girl. It is to be noted that the statement made by the said witness before the Court, though sought to be contradicted by the defence on these crucial aspects of the evidence, could not be shaken. 37. It may be also noted that the mother of the victim, PW 1 in her statement before the Court stated that when she saw her daughter, she was leaning on Premlata and she was almost in a semi-conscious condition. The uncle of the victim (PW. 8) who came to pick up the girl along with her sister (mother of the victim) also stated before the Trial Court that he saw the Prosecutrix standing with the support of Premlata by closing her eyes, observing which, his sister scolded Premlata and he found that the girl looked drowsy and dizzy. The witness account of the physical condition of the Prosecutrix by the owner of the restaurant (PW 3) before she left the restaurant with the appellants corroborate the claim of the Prosecutrix that she was made to consume intoxicated drink. The description of the physical condition of the Prosecutrix being in a state of drowsiness at the time when she was received by her mother (PW 1) and uncle (PW. 8), and at the residence of her aunt also clearly is supportive of the claim of the Prosecutrix that she had consumed certain intoxicating drink. The Prosecutrix also stated that after she reached the house of her aunt along with her mother, she fell asleep. Her condition in the night was also testified by her relatives. The aforesaid testimonies of the witnesses have not been shaken, which indicate that the Prosecutrix had consumed certain intoxicating drinks. The recovery and seizure of the bottle with the label "White Magic" corroborates the aforesaid claim that she was made to consume intoxicating drink. Thus, the absence of proof of the contents of the bottle through forensic test, in our opinion, would not be fatal. 38. The recovery and seizure of the bottle with the label "White Magic" corroborates the aforesaid claim that she was made to consume intoxicating drink. Thus, the absence of proof of the contents of the bottle through forensic test, in our opinion, would not be fatal. 38. The appellants, however, have contended that the testimony of Premlata (PW 2) does not support the aforesaid physical condition of the Prosecutrix. According to the appellants, PW 2 who was the first to receive the girl from the appellants did not give any such description. PW 2 testified that she found the girl sitting inside the car while the appellants were standing outside and after the mother of the girl came, she handed over to her. However, she also did not specifically testify that she was in a normal condition and there was nothing suspicious about the condition. If the appellants content that the evidence of PW 2 does not support the case of the prosecution, it neither supports the case of the appellants. The fact that the girl was found sitting inside the car while the appellants were staying outside does not contradict the statement that she was not in a proper condition to stand on her own. 39. The defence/appellants found serious fault with the fact that the Prosecutrix gave her statement under Section 161 Cr. P.C , 1973as many as 4 times on 21.10.2012, 23.10.2012, 01.11.2012 and 09.11.2012 before different Investigating Officers alleging she gave improved versions. It has been also alleged that she also gave her statement under Section 164 Cr. P.C , 1973on 12.11.2012, which is after more than 20 (twenty) days of the incident. The appellants contend that these statements made were not only inconsistent but also contradictory in many aspects. Further, there had been improvements in the version in the subsequent statements made. Accordingly, it has been submitted on behalf of the appellants that the evidence of the Prosecutrix is unreliable. Some of the purported inconsistencies/contradictions in the previous statements of the Prosecutrix vis-a-vis her testimony before the Court relate to the following aspects: (i) Relationship of the Prosecutrix with the appellants. (ii) About who initiated the rendezvous on 20.10.2012. (iii) Circumstances in which Appellant Tarun was picked up by the Appellant William on the way to the restaurant. (iv) Dress put on by the Prosecutrix before entering and when she left the restaurant after the incident. (ii) About who initiated the rendezvous on 20.10.2012. (iii) Circumstances in which Appellant Tarun was picked up by the Appellant William on the way to the restaurant. (iv) Dress put on by the Prosecutrix before entering and when she left the restaurant after the incident. (v) Whether she consumed intoxicated juice or not and if so, the manner in which she consumed. (vi) Whether she lost consciousness partially or not within in the restaurant and whether she was in full control of her senses or not. (vii) The manner in which the sexual assault took place inside the cabin of the restaurant is not consistently explained. Her description of the sexual assaults vary in her statements. (viii) Whether it was only the appellant William who sexually assaulted her in the cabin of the restaurant or whether appellant Tarun also sexually assaulted her. (ix) The fact that the Prosecutrix did not mention about the sexual intercourse by appellant Tarun with her in her statements under Section 161 Cr. P.C., 1973 but later on in her statement under Section 164 Cr. P.C., 1973 and before the Trial Court indicates that this portion was made up. (x) There was consensual sexual encounter of the Prosecutrix with appellant William. (xi) There was no injury to the Prosecutrix. (xii) The behaviour of the Prosecutrix after the incident is not consistent with that of a raped girl. She never complained to anybody immediately. (xiii) The claim of the Prosecutrix that she was sleeping in the night of 20.10.2012 and she woke up late in the next morning is not supported by CDR call records. There have been many calls between the mobile phone of the Prosecutrix and the appellants during 8:28 pm to 10:21 pm. In other words, she was in touch with appellants which belies the allegation of rape. (xiv) The Prosecutrix was keen in getting eloped with appellant William, thus clearly indicating consensual relationship. 40. The testimony of the other sole eye witness, the owner of the restaurant was also sought to be discredited by the defence on the following grounds. (i) He did not testify about the sexual encounters in his initial statement made under Section 161 Cr. P.C., 1973 (ii) He stated so in his statement made under Section 164 Cr. P.C., 1973 and before the Trial Court only after being threatened by the police to suit the prosecution case. 41. (i) He did not testify about the sexual encounters in his initial statement made under Section 161 Cr. P.C., 1973 (ii) He stated so in his statement made under Section 164 Cr. P.C., 1973 and before the Trial Court only after being threatened by the police to suit the prosecution case. 41. We may examine whether the evidence of the Prosecutrix and the owner of the restaurant are unreliable as contended by the appellants. 42. It has been submitted on behalf of the appellants that the Prosecutrix had a close relationship with the appellant William and he was her boyfriend and she used to talk to him very frequently. It was also she who took the initiative who wanted to go out with him for a "date" and had rung up William the night before 20.10.2012. Hence, whatever happened on 20.10.2012 in the restaurant was with her full knowledge and consent. According to the appellants, in her statements made before the police as well before the Trial Court, she wanted to portray a picture of their relationship being merely a casual acquaintance and not a close and intimate one, though it was to the contrary. During the trial, the defence drew her attention to inconsistent statements made under Section 161 Cr. P.C., 1973 regarding her relationship with William. It has been contended by the appellants that though it was stated by the Prosecutrix that on 19.10.2012 a message was received from the appellant Tarun stating that she should not communicate with him, as per the Call Detail Reports (CDR) it was the Prosecutrix who herself had sent two sms to the appellant Tarun. It was also claimed by the appellants that though the Prosecutrix stated that William called her on 20.10.2012 at about 8:30 am, the CDR shows that it was the Prosecutrix who sent sms to the appellants William and Tarun. Though the Prosecutrix claimed to have shown her annoyance to the appellant William for inviting Tarun join them on 20.10.2012 it was the Prosecutrix who first sent sms to Tarun. She also received a call from Tarun lasting 85 secs. These calls, sms, according to the appellants would clearly indicate that the Prosecutrix herself was taking the initiatives and she was not giving the true narration of the episode leading to the incident on 20.10.2012. 43. She also received a call from Tarun lasting 85 secs. These calls, sms, according to the appellants would clearly indicate that the Prosecutrix herself was taking the initiatives and she was not giving the true narration of the episode leading to the incident on 20.10.2012. 43. It may be noted that these inconsistencies at best would indicate that the Prosecutrix was familiar with the appellants. Yet, these mobile communications on their own do not suggest that the Prosecutrix and either of the appellants had a very close or intimate relationship, in absence of proof of the contents of the tele-mobile communications between the Prosecutrix and the appellants. It is to be noted that the relationship between them had developed recently during the period of about one month before the incident, which fact has not been denied by the appellants. There is nothing on record to suggest that the Prosecutrix had intimate relationship with either of the appellants except for meeting in certain public places or residences of some known friends. There is also nothing to suggest that the Prosecutrix had spent any private moments earlier and had engaged in sex with either of the appellants. In fact, it is on record that it was for the first time that the "date" was fixed and that the Prosecutrix had met the appellants without any of her friends or acquaintances on that day only. There is nothing on record that they had planned to have sex on that day. In our opinion, these inconsistencies referred to above do not substantially change the nature of their relationship nor these indicate that the Prosecutrix had a very close and intimate relationship with either of the appellants and that she is not a truthful witness and untrustworthy witness or that she was of a fun loving frivolous nature. 44. During the cross examination, it was suggested on behalf of appellant William that he and the Prosecutrix had decided to go for a "date" on 20.10.2012. It was suggested on behalf of the appellant William during the cross examination that he had proposed to the Prosecutrix "to enjoy (ourselves) to the fullest and have drinks together" on that day to which she had agreed. It may be noted that this suggestion of the appellant is supportive of the fact of consumption of the intoxicating drink. It was suggested on behalf of the appellant William during the cross examination that he had proposed to the Prosecutrix "to enjoy (ourselves) to the fullest and have drinks together" on that day to which she had agreed. It may be noted that this suggestion of the appellant is supportive of the fact of consumption of the intoxicating drink. However, in the light of the material evidences on record, it is doubtful whether such a proposition of the appellant William found ready acceptance from the Prosecutrix. This Court finds it difficult to accept that the Prosecutrix would agree for an intimate relationship in the company of another person. There is nothing on record (and as the appellants have not adduced any evidence) to suggest that their short acquaintance for only about a month would result in such intimate proposition being made by the appellant William and that it would be readily accepted by the girl unless induced to do so. There is nothing to suggest that the girl was frivolous and prone to such irresponsible pleasure seeking behaviour who would agree "to enjoy ..... to the fullest and have drinks together" as claimed by the appellant William. It is doubtful in the facts and circumstances on record, in absence of any characterisation of the girl, if such intimate association could have been possible within such a short period of acquaintance and that too in presence of another person namely, the appellant Tarun, who was called by the William to come with them. 45. There are other inconsistencies, assert by the appellants. It has been stated that while the Prosecutrix had stated in her testimony before Trial Court that "After some time, I lost all my strength and fell down on the wooden sofa and to which I struck my head on the handle of the sofa thereby losing consciousness. When I regain my senses, I felt that I had been sexually assaulted/sexually intercourse by somebody bur I could not restrain the act due to complete lost of strength," in her statement made under Section 161 Cr. P.C., 1973 she had stated that "I begin to lost my energy and body control. They then let me rest and lie down on the sofa. P.C., 1973 she had stated that "I begin to lost my energy and body control. They then let me rest and lie down on the sofa. I am conscious however, was not able to do anything." Again in her second statement made before the police, she had stated that "Then, I lie down on the wall. I have sense, however, was not able to struggle anything. All my energy were gone". Again, the Prosecutrix stated before the Trial Court that, "When I regain my senses, I felt ....... William was having intercourse/sexually assaulting me" but in her statement before the Police she had stated that "Then William unrope and raped me for the first time". The Prosecutrix testified before the Trial Court that "When I again regain consciousness, I found accused Tarun sexually assaulting me and at that relevant time William was also standing beside us. The accused Tarun after completing the sexual intercourse upon me used my hands to play with his penis by lifting my right hand. On seeing the acts of the accused Tarun I felt very shocked and started crying and at that time the accused Tarun threatened my by saying that all the acts happen on that day will be uploaded in the internet. Thereafter, accused Tarun went out of the room and after some minutes, accused William entered in the said room and on seeing my crying he told that he went out to the toilet on his thinking that my crying was due to his actions". According to the appellants, this statement is self-contradictory. 46. We are of the view that these descriptions do not constitute contradictory versions. Giving more details of the incident does not necessarily mean improvement in the earlier version. Improvement is not a vice, so long as it does not introduce a substantially new version changing the nature of the allegation. It is to be also remembered that these are the details of the incident when she was under the influence of an intoxicating drink. Therefore, much cannot be read into these variations, which do not substantially alter the character of the encounter. 47. It is to be also remembered that these are the details of the incident when she was under the influence of an intoxicating drink. Therefore, much cannot be read into these variations, which do not substantially alter the character of the encounter. 47. It was the case of the appellants that the Prosecutrix testified before the Trial Court that, "I told them that I could not enter my home in that situation and that time the accused Tarun told that you can elope at another time but for today, you have to return to your home by any means". On the other hand, she stated in her Section 164 Cr. P.C., 1973 statement that, "I told William that considering the whole episode and also that late hours, I could not return home. They told me to make some pretext to my family for returning late. Tarun also told me to elope after the Puja if it was to be done." The appellants accordingly contended that taking into consideration these two statements, it is crystal clear that if both the accused person had raped her, she would have never stated such statement and Tarun would also have never suggested to elope after the Puja. 48. It is to be remembered that there is no evidence on record that the Prosecutrix was planning to elope before the incident happened. Neither the Prosecutrix nor the appellant William had indicated any such move. The idea of elopement was suggested to the Prosecutrix by the appellants to extricate themselves from a sticky situation. As clearly evident from the testimony of the Prosecutrix before the Trial Court as well as in her statement made under Section 164 Cr. P.C., 1973 the Prosecutrix had stated that she could not enter her home in that condition and she cried and it was the appellant Tarun who told her to find out a pretext for returning at such late hour and also to elope after the Puja. She stated to same effect in her statements made under Section 161 Cr. P.C., 1973 The Prosecutrix did not say at any point of time that she wanted to elope. Therefore, the appellants cannot put words in the mouth of the Prosecutrix and take advantage of a proposition, she never initiated. There is no contradiction between the statements made by the Prosecutrix under Section 161 Cr. P.C., 1973 The Prosecutrix did not say at any point of time that she wanted to elope. Therefore, the appellants cannot put words in the mouth of the Prosecutrix and take advantage of a proposition, she never initiated. There is no contradiction between the statements made by the Prosecutrix under Section 161 Cr. P.C., 1973 and her testimony in the Trial Court. 49. The appellants have also tried to find inconsistencies in the statements of the Prosecutrix about the evening/night of the incident. She testified before the Trial Court that "After reaching the house of my aunty, Sita, I felt asleep and at about 09:30 pm I got up and that time, I find myself alone on the said room. Then, I sent an SMS to the phone of William to call me up". The appellants contend that the Prosecutrix was not telling truthfully as according to the CDR of the Prosecutrix, the Prosecutrix was talking with someone else at 07:18 pm. This call at 7:18 pm does not prove anything nor disprove her statement that she fell asleep after reaching the house of her aunt. This CDR does not prove anything. The details in the CDR do not indicate who actually were having the conversations. The communication was with one mobile number 09774624653, which the appellants did not claim to belong to either of them. It does not also prove that it was the Prosecutrix herself who made the call. 50. There are certain interesting aspects about the CDRs relating to the call details of Aircel No. 8575731903 for the period from 18.10.2012 (6:40:04 AM) to 22.10.2012 (10:11:12 AM) which admittedly was being used by William, vide Exhibit DW/2 and corroborated by Exhibit DW/1 adduced by the appellants. According to the appellants, the Prosecutrix was using the mobile number 9774812938 and William was using the number 8575731903 and Tarun, 8014267123. During that period there were as many 21 outgoing calls from mobile No. 8575731903 (William) to 9774812938 (Prosecutrix), whereas there were only 4 calls from the number of the Prosecutrix which show that William was calling the Prosecutrix more often, thus indicating that he was more interested with having acquaintance/relationship with the Prosecutrix. During that time there were 13 calls between William and Tarun. During that time there were 13 calls between William and Tarun. On 20.10.2012, there was a call from the appellant William's mobile number to the number of the Prosecutrix at 8:47:04 AM lasting 503 seconds followed by further outgoing calls at 9:05:41 AM for 96 seconds and at 9:28:47 AM for 232 seconds and at 10:09:54 AM. These calls from the mobile phone of William, in fact, would indicate that it was William who was trying to contact the Prosecutrix. Why should William try to contact her and not the other way round, if the Prosecutrix was keen to elope with William as the appellants are suggesting? If the Prosecutrix was keen to keep in touch with William she should have rung up William and not the other way round. Thereafter, on that day, there was no communication between these two mobile numbers till 9:32:43 PM. Thereafter, 4 (four) outgoing calls were made from the mobile number of the appellant William to the mobile number of the Prosecutrix at 9:35:36 PM (3 seconds), 9:36:11 PM (46 seconds) and 9:38:19 PM (376 seconds). Thereafter, on that day there was no call between these two numbers. Thus these calls made by the Appellant William would indicate that it was William who was more interested to talk to the Prosecutrix. It was the appellant who relied on the CDRs and as such, the onus was on the appellant to explain the circumstances and contents of the said calls. Merely, because the calls were made by William to the mobile number of the Prosecutrix, does not necessarily mean that it was Prosecutrix who talked to the appellant. Since, the mother of the Prosecutrix was known to the appellant, her mother could have answered the calls. There is yet another interesting aspect of the CDRs of the William's mobile number. After having the last communication with the mobile number of the Prosecutrix at 9:38:19 PM (376 seconds) on 20.10.2012, there was a flurry of longish conversations between the mobile number of William with another mobile number (9402673328) at 10:05:00 PM (89 seconds), at 10:33:43 PM (37 seconds), 10.37:20 (629 seconds), 10:56:58 PM (216 seconds) and with another mobile number (89747775827) at 11:10:52 PM (1019 seconds) and another mobile number no. 9774525191 at 11:50:35 PM (100 seconds), at 11:56:19 PM (103 seconds) and 12:00:50 AM of 21.10.2012 (80 seconds). 9774525191 at 11:50:35 PM (100 seconds), at 11:56:19 PM (103 seconds) and 12:00:50 AM of 21.10.2012 (80 seconds). On the other hand, there is no activity of the mobile number of the Prosecutrix after the last communication with the mobile number of appellant William at 21:38:20 on 20.10.2012 (vide Exhibit DW/1). The appellants have chosen not to explain the flurry of phone calls from the mobile number of appellant William after the last call with the Prosecutrix, while there is no call made with/from the number of Prosecutrix on 20.10.2012. Was he anxious with something after he had a talk with the Prosecutrix or her mother? In absence of any explanation from the appellants, the Court has to appreciate the evidences on the basis of the plea of the prosecution in the light of other evidences on record. Section 106 of Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving the fact is upon him. The appellant was therefore, could have explained what had transpired in those calls as it was the appellant who produced these CDRs and he was one of the callers. It may be also noted that there was one call from the number of William to that of Prosecutrix on 21.10.2012 at 3:43:11 PM (31 seconds). Since, it was a call from the appellant William, it was also incumbent upon him to explain why he made the call, if the appellant wants to make out any case in his favour out of the said call. These calls indicate that the appellant William was making more communications with the Prosecutrix, rather than the other way round. It does not support the suggestion of the appellant that the Prosecutrix was more interested to cement the bond between her and the appellant William. It seems the appellant William was more interested to keep in touch with the Prosecutrix. On the other hand, these calls between the Prosecutrix and the appellants, more particularly William only indicates that they were not strangers but knew one another prior to the incident. However, from this fact alone without other evidences, it cannot be inferred that the Prosecutrix had consented to the sexual intercourse with the appellants. There is nothing to suggest that the Prosecutrix had agreed to have sex with the appellants. 51. However, from this fact alone without other evidences, it cannot be inferred that the Prosecutrix had consented to the sexual intercourse with the appellants. There is nothing to suggest that the Prosecutrix had agreed to have sex with the appellants. 51. The appellants have also contended that the Prosecutrix had contradicted herself in her subsequent statements made. The Prosecutrix had stated before the Trial Court that "Then, I also told him that it would not be proper to enter in such hotel as I was in school uniform and the William also entered the said hotel after giving me his shirt after taking out the same", whereas in the statements made before the 2nd Investigating Officer, she had stated that, "Before entering William must insist to wear his men shirt (white blue check) with school uniform phanek enter the fast-food" and before the 3rd Investigating Officer, she had stated that, "Before entering the fast food Da William asked me to wear his men's shirt on top of my school uniform as forbidden to enter in full uniform". However, we are not able to discern any contradictions in these statements. These only fortify the fact that the Prosecutrix wore the shirt of William before/while entering the restaurant. The differences are only minor and do not substantially differ from one another and does not change the nature of their visit to the restaurant nor does it have any bearing on the crucial issue of consent to have sexual intercourse. 52. The appellants have also alleged many other inconsistencies in the statements of the Prosecutrix. She stated before the Trial Court that, "Then, William called me again which I replied and told him to come, on thinking that it will be better to clear my stand to him for not disturbing me and for not bothering me in future". On the other hand, she had stated before the 1st Investigating Officer that " Somehow............ He asked me to go for a date........... He told me to come out on students' uniform and come along with one of my friends which I lied I don't have one. He told me that I have to compulsorily come out on Saturday, i.e. 20-10-2012". In her statement before the 2nd I.O., she had stated that "He asked me to go for a date........ wouldn't allowed me. He told me to come out on students' uniform and come along with one of my friends which I lied I don't have one. He told me that I have to compulsorily come out on Saturday, i.e. 20-10-2012". In her statement before the 2nd I.O., she had stated that "He asked me to go for a date........ wouldn't allowed me. He even told me to come out on students' uniform compulsorily on 20-10-2012 for date........". It is the contention of the appellants that in her statements before the Investigating Officers, while she was emphasising that it was William who was insisting for going for a date, she does not say so before the Trial Court and she stated that she went to clarify her stand to him and not to disturb her and bother in future. Thus, she was hiding certain things and as such her statement ought not be relied upon. It was suggested to the Prosecutrix that the appellant William was her boyfriend and that she had a love affair with him which she denied. Even if it is assumed that the Prosecutrix was the girl friend of the appellant William, can it be the basis for presuming that the Prosecutrix wanted to have sexual intercourse with him in presence of another person? It was nowhere suggested that the Prosecutrix wanted to have sex with him. During her cross examination, it was suggested on behalf of the appellant William that "....William suggested to enjoy ourselves to the fullest and have drinks together and I also agreed to the suggestion." The Prosecutrix, however, denied the suggestion. Even assuming that the Prosecutrix agreed to enjoy the fullest and have drinks together, does it amount to giving consent in clear terms to have sexual intercourse? We do not think so, for the reasons we enumerate hereinafter. The appellant William could have stated in his statement made under Section 313 Cr. P.C , 1973that they had sexual intercourse with her consent. But he chose not to say so. It was incumbent upon him to explain what is meant by "to enjoy to the fullest." 53. The appellants have also referred to other alleged contradictions or improvements in the statements of the Prosecutrix. P.C , 1973that they had sexual intercourse with her consent. But he chose not to say so. It was incumbent upon him to explain what is meant by "to enjoy to the fullest." 53. The appellants have also referred to other alleged contradictions or improvements in the statements of the Prosecutrix. She stated before the Trial Court that, "When I again regain consciousness, I found accused Tarun sexually assaulting me and at that relevant time William was also standing beside us." It has been contended that this statement of Tarun sexually assaulting her was not found in her four rounds of statements given before the Medical Officer and the Investigating Officers. The appellants contended that it was introduced for the first time in her 5th statement given before the 3rd Investigating Officer on 9.11.2012 and her statement made under Section 164 Cr. P.C., 1973 54. The appellants also contend that the Prosecutrix made several inconsistent statements and improvements relating to the state of unconsciousness and sexual assault by the appellants. The Prosecutrix stated before the Trial Court that "After sometime, I lost all my strength and fell down on the wooden sofa and to which I struck my head on the handle of the sofa thereby loosing consciousness." The appellants contend that this statement was not found in her earlier statements given before the Medical Officer and the Investigating Officers and this was introduced on her 6th statement given under Section 164 Cr. P.C., 1973 55. The appellants also contended that while the Prosecutrix stated before the Medical Officer that she was sitting when the alleged incident happened which according to the appellants is not possible. It may be stated that initially they must be in a sitting position as they were visiting a restaurant. Therefore, mentioning of sitting position, in the opinion of Court, does not materially affect the prosecution version. 56. The appellants also contended that the Prosecutrix introduced for the first time before the Trial Court the allegation that she was subjected to sexual intercourse by both the appellants and had penetrated their respective penis to her vagina, which were not stated before the Medical Officer or the Investigating Officers and the Magistrate when the statement made under Section 164 Cr. P.C., 1973 was recorded. 57. P.C., 1973 was recorded. 57. The appellant Tarun has taken strong exception to the fact that though the Prosecutrix had not charged him of committing rape on her in her statements made to the Police, nor was it mentioned in the FIR and it was introduced later on in her statement before the 3rd I.O. and under Section 164 Cr. P.C., 1973 and the Trial Court. However, she had explained in the Trial Court that she did not disclose rape by Tarun earlier as she was apprehensive of the public reaction if it was disclosed that she was raped by two persons at a time. In fact, she had stated in her statement made under Section 164 Cr. P.C., 1973 that she had avoided mentioning about rape by appellant Tarun as she was apprehensive of what others would say if she revealed that she was raped by two men, which she again testified before the Trial Court and her testimony could not be shaken. This explanation does not appear to be outlandish or unnatural considering the fact that she was a school going girl of about 16 years and 7 months whose future has been already blotted by the rape. After all, Manipuri society in which the episode occurred, is still a relatively conservative society where young girls would be careful of their reputation and the observation of the Hon'ble Supreme Court in Chhotey Lal (supra) will not be out of context vis-a-vis this incident. It is to be noted that this alleged introduction of the charge that appellant Tarun had sexual intercourse is corroborated by the testimony of the owner of the restaurant who had witnessed the appellant Tarun in a naked state and engaging in a sexual movement, though he did not see the girl. 58. The appellants also contended that whenever the Prosecutrix was confronted in the Trial Court with her previous statements made to the Investigating Officers including statement given before the Judicial Magistrate, she always replied that she never stated such statements before the IOs and that she does not know how they had recorded the said portions as part of her statement, thus clearly indicating that she was narrating different versions during the investigation and the trial. 59. The appellants have also pointed out similar several inconsistencies and contradictions in the statements made by other witnesses. 59. The appellants have also pointed out similar several inconsistencies and contradictions in the statements made by other witnesses. According to the appellants, these are fatal inconsistencies and contradictions which render the evidence of the Prosecutrix unreliable. 60. We have considered these apparent inconsistencies/contradictions in the statements of the Prosecutrix made under Section 161 Cr. P.C., 1973 about their relationship and how they had decided to go for a "date" on 20.10.2012. But we are of the view that these are minor and inconsequential, more particularly in view of the admissions by the appellant William himself in his statement made under Section 313 Cr. P.C., 1973 61. Perusal of the statement of the appellant William however, does not show that they were very close and intimate friends, though they had become acquainted. The Prosecutrix might not have gone out alone with the appellants unless she was familiar with them or had trusted them. This relationship based on trust is clearly borne from the evidences. However, the evidences also do not show that the Prosecutrix and any of the appellants had been meeting together in privacy on any earlier occasion. At least there is nothing on record to suggest otherwise. The said "date" on 20.10.2012 seems to be their first one. The evidences on record also do not show that the Prosecutrix and the appellant William or Tarun had pre-planned to have sex. None of the appellants including William says so. It is important to note these aspects, as the Prosecutrix had denied having any intimate relationship with either of the appellants and she had charged both of them of raping her without her consent. 62. On the overall reappraisal of the evidences on record, we are of the opinion that the alleged contradictions and inconsistencies in the statements of the Prosecutrix about their relationship, how they came to the restaurant and what happened inside the restaurant, in the light of the statement of appellant William, do not seem to be of much significance so as to doubt her character and testimony. If there be any improvement in her narration of the incident, it need not necessarily be doubted, as human memory does tend to recapitulate more details of any shocking incident after attaining proper frame of mind. If there be any improvement in her narration of the incident, it need not necessarily be doubted, as human memory does tend to recapitulate more details of any shocking incident after attaining proper frame of mind. If the Prosecutrix was indeed intoxicated as claimed by her, it cannot be said to be unnatural not to recollect everything at the first instance. It would be rather natural that such a girl who has been subjected to sexual intercourse when in a state of intoxication without her consent may recollect more details of the incident after regaining normalcy with proper frame of mind. Thus her narration of the incident with more clarity in the subsequent narrations after she recovered from a traumatic experience cannot be brushed aside as mere concoctions and improvements to cast doubt on her testimony. These cannot be dismissed as improvements. The improvements, if any, do not contradict the initial narration. Neither there is fundamental shift in her narration. As she was narrating the incident of rape when she herself was in an intoxicated condition, there are bound to be variance in minor details in describing the incident. It is these minor or variations in the description that the appellants are harping on to contend that the evidence of the Prosecutrix is full of contradictions, inconsistencies and hence, not reliable. 63. While appreciating the evidence of the Prosecutrix, we have kept in mind the circumspections required of the Court to ensure that while relying on the evidence of a victim of rape, the accused is not falsely implicated. In that regard, we may refer to the decision in Narender Kumar v. State (NCT of Delhi), (2012) 7 SCC 171 wherein, the Hon'ble Supreme Court held that, "20. It is a settled legal proposition that once the statement of the Prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the Prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the Prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. 21. Corroboration of testimony of the Prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. 21. A Prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject-matter being a criminal charge. However, if the court finds it difficult to accept the version of the Prosecutrix on its face value, it may search for evidence, direct or substantial (sic circumstantial), which may lend assurance to her testimony. (Vide Vimal Suresh Kamble v. Chaluverapinake Apal S.P. (2003) 3 SCC 175 : 2003 SCC (Cri) 596 : AIR 2003 SC 818 and Vishnu v. State of Maharashtra (2006) 1 SCC 283 : (2006) 1 SCC (Cri) 217 : AIR 2006 SC 508 .) 22. Where evidence of the Prosecutrix is found suffering from serious infirmities and inconsistencies with other material, the Prosecutrix making deliberate improvement on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence. (Vide Suresh N. Bhusare v. State of Maharashtra (1999) 1 SCC 220 : 1998 SCC (Cri) 1595.) 23. In Jai Krishna Mandal v. State of Jharkhand (2010) 14 SCC 534 : (2011) 3 SCC (Cri) 842 this Court while dealing with the issue held: (SCC p. 535, para 4) "4. ... the only evidence of rape was the statement of the Prosecutrix herself and when this evidence was read in its totality the story projected by the Prosecutrix was so improbable that it could not be believed." 24. In Raju v. State of M.P. (2008) 15 SCC 133 : (2009) 3 SCC (Cri) 751: AIR 2009 SC 858 this Court held: (SCC p. 141, para 10) "10. ... In Raju v. State of M.P. (2008) 15 SCC 133 : (2009) 3 SCC (Cri) 751: AIR 2009 SC 858 this Court held: (SCC p. 141, para 10) "10. ... that ordinarily the evidence of a Prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence is reliable, no corroboration is necessary." The Court however, further observed: (Raju case (2008) 15 SCC 133 : (2009) 3 SCC (Cri) 751: AIR 2009 SC 858 , SCC p. 141, para 11) "11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication ... there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration." 25. In Tameezuddin v. State (NCT of Delhi) (2009) 15 SCC 566 : (2010) 2 SCC (Cri) 695, this Court held as under: (SCC p. 568, para 9) "9. It is true that in a case of rape the evidence of the Prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter." 26. Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference of the victim being a woman of "easy virtues" or a woman of "loose moral character" can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated. (Vide State of Maharashtra v. Madhukar Narayan Mardikar (1991) 1 SCC 57 : 1991 SCC (Cri) : AIR 1991 SC 207 , State of Punjab v. Gurmit Singh (1996) 2 SCC 384 : 1996 SCC (Cri) 316 : AIR 1996 SC 1393 and State of U.P. v. Pappu (2005) 3 SCC 594 : 2005 SCC (Cri) 780 : AIR 2005 SC 124.) 27. In view of the provisions of Sections 53 and 54 of the Evidence Act, 1872, unless the character of the Prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration at all. 28. The courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of the witnesses which are not of a substantial character. 29. However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witnesses have falsely implicated the accused. The prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. (Vide Tukaram v. State of Maharashtra AIR 1959 SC 1012 : 1959 Cri LJ 1231 and Uday v. State of Karnataka (2000) 1 SCC 247 : 2000 SCC (Cri) 147.) 30. The prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction of the accused. The conviction can be based on sole testimony of the Prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of the Prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the Prosecutrix is found to be improbable, the Prosecutrix's case becomes liable to be rejected. 31. The court must act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in the isolation. Even if the Prosecutrix is of easy virtues/unchaste woman that itself cannot be a determinative factor and the court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of." As mentioned above, we are of the view that the evidence of the Prosecutrix does not suffer from infirmities and inconsistencies on material points. 64. "Consent" according to Blacks' Law Dictionary (10th Edn.) is a voluntary yielding to what another proposes or desires; agreement, approval or permission regarding some act or purpose, esp. given voluntarily by a competent person. This consent to have sexual intercourse must be expressed or inferable in clear terms. It cannot be a matter of mere inference but must be clearly evident when the victim is denying such consent. Absence of consent, being a negative fact to be proved, the requirement of proof is not as rigorous as proving a positive assertion. This consent to have sexual intercourse must be expressed or inferable in clear terms. It cannot be a matter of mere inference but must be clearly evident when the victim is denying such consent. Absence of consent, being a negative fact to be proved, the requirement of proof is not as rigorous as proving a positive assertion. If the defence takes the plea of consent, the defence has to demonstrate either by addressing evidence to that effect or through cross examination or from the evidences produced by the prosecution that the girl had given consent in clear terms after the prosecution has been able to demonstrate prima-facie that sexual intercourse without consent had taken place. The appellants on the basis of the evidences adduced by the prosecution and after cross meaning the witnesses have not been able to indicate that the Prosecutrix had even indirectly agreed to have sexual intercourse with the appellants. Since it is a negative fact to be proved, it would suffice if the Prosecution proves that the Prosecutrix did not give consent. Mere suggestion or possibility that the Prosecutrix might have given consent does not meet the requirement of giving consent under Section 375 IPC. 65. Thus, the crucial question remains, as to whether the alleged sexual intercourse was with the consent of the Prosecutrix. It is to be noted that the appellants in the first place never admitted to have sexual intercourse and as such according to them the issue to consent does not arise. However, as discussed above, we have no reason to disbelieve the statement of the Prosecutrix that she was sexually assaulted by the appellants. The testimony of the owner of the restaurant and medical report corroborate her testimony. The statement of appellant William corroborates the fact that there was sexual intimacy with the Prosecutrix, though he claims that it was restricted to consensual oral sex with her. William has denied having sexual intercourse with the girl. As regards the appellant Tarun, the owner of the restaurant saw the appellant Tarun engaged in sexual intercourse. As regards consent, the Prosecutrix claimed that she was sexually assaulted by the appellants when she was in a semi-conscious condition after she was made to consume an intoxicating drink after which she was not able to resist them. She cried out of shock and helplessness. As regards consent, the Prosecutrix claimed that she was sexually assaulted by the appellants when she was in a semi-conscious condition after she was made to consume an intoxicating drink after which she was not able to resist them. She cried out of shock and helplessness. The recovery and seizure of the bottle "White Magic" and subsequent observation of the gait of the Prosecutrix by the restaurant owner corroborates her claim that she was made to consume some intoxicating drink. The statement of the owner of the restaurant that he saw her crying corroborates the statement of the girl that she cried when/after the appellants had sex with her. The evidences on record clearly suggest that the appellants imposed themselves on her after making her intoxicated and that there was no consent from the girl to have vaginal sexual intercourse. Or else, why should a consenting girl cry while having sex? It may be also mentioned that Section 90 of IPC states that a consent is not a consent, if the consent is given by a person under fear of injury or under a misconception of fact. If therefore, a victim of rape does not resist because of fear of being exposed later through social media/internet, it can not be said to constitute to be consent. The fear of injury to one's reputation in the society is also within the meaning of fear of injury under Section 90 IPC. "Third" situation contemplated under Section 375 IPC states that a consent is no consent if is obtained by putting the victim woman in fear of hurt. This hurt does not necessarily mean only physical hurt. It can also extend to hurt to one's reputation. The situation contemplated under "Fifth" category under Section 375 IPC can be also considered in the present case. 66. Since the appellants have never pleaded consent of the girl to have sexual intercourse with her and have opted not to lead evidence in that regard, it is doubtful if this suggestion of consent made by the appellants can be considered at all, in the light of observation made in Ganga Singh v. State of M.P., (2013) 7 SCC 278 : (2013) 3 SCC (Civ) 505 : (2013) 3 SCC (Cri) 314, at page 284 : "16. We further find that the appellant has not taken a defence in his statement under section 313 of the Criminal Procedure Code, 1973 that the sexual intercourse was with the consent of PW 5. Instead, he has denied having had any sexual intercourse with PW 5 and has taken a stand that he has been falsely implicated on account of a quarrel between him and the husband of PW 5. Yet, the trial court held that there was proof of sexual intercourse between the appellant and PW 5, but the sexual intercourse was with the consent of PW 5. We are of the considered opinion that as the appellant had not taken any defence of consent of PW 5, the trial court was not correct in recording the finding that there was consent of PW 5 to the sexual intercourse committed by the appellant and should have instead considered the defence of the appellant that he had been falsely implicated because of a quarrel between him and the husband of PW 5. We have, however, considered this defence of the appellant but find that except making a suggestion to PW 2, the appellant has not produced any evidence in support of this defence. As PW 2 has denied the suggestion, we cannot accept the defence of the appellant that he was falsely implicated on account of a quarrel between the appellant and the husband of PW 5." In the present case, though the appellants did not take the plea that there was sexual intercourse, it has been proved, and as such the entire prosecution case will depend on whether there was consent or lack of it. Accordingly, we will proceed to examine this crucial issue. 67. Rape is defined under Section 375 IPC. It states that, "A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- First-Against her will. Secondly-Without her consent. Thirdly-With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly-with her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fourthly-with her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly-with her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly-With or without her consent, when she is under sixteen years of age. Explanation-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception-Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape." Thus, a person commits rape if he has sexual intercourse with a woman against her will, or without her consent and with her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. 68. As to what amounts to consent for the purpose of rape has been explained by the Hon'ble Supreme Court in Roop Singh v. State of M.P., (2013) 7 SCC 89 , wherein it was held that, "9. In State of U.P. v. Chhotey Lal (2011) 2 SCC 550 : (2011) 2 SCC (Cri) 674 the following passage from the judgment of a three-Judge Bench of this Court in State of H.P. v. Mango Ram (2000) 7 SCC 224 : 2000 SCC (Cri) 1331 on the meaning of "consent" for the purpose of the offence of rape as defined in Section 375 IPC, is quoted: (Chhotey Lal case (2011) 2 SCC 550 : (2011) 2 SCC (Cri) 674, SCC p. 560, para 20) "20. ... 13. ... Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. ... 13. ... Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.' (Mango Ram case (2000) 7 SCC 224 : 2000 SCC (Cri) 1331, SCC pp. 230-31, para 13)" 10. Thus, unless there is voluntary participation by the woman to a sexual act after fully exercising the choice in favour of assent, the court cannot hold that the woman gave consent to the sexual intercourse............" 69. It was further elucidated in Kaini Rajan v. State of Kerala, (2013) 9 SCC 113 : (2013) 3 SCC (Cri) 858 that "consent", for the purpose of Section 375 IPC, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. It was, accordingly, held that, "12. Section 375 IPC defines the expression "rape", which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her on any person in whom she is interested in fear of death or of hurt. The expression "against her will" means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. "Consent" is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression "consent". Section 90, though, does not define "consent", but describes what is not consent. "Consent" is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression "consent". Section 90, though, does not define "consent", but describes what is not consent. "Consent", for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. (See State of H.P. v. Mango Ram (2000) 7 SCC 224 : 2000 SCC (Cri) 1331.)" 70. The scope of "consent" has been further elucidated in Sohan Singh and Anr. v. State of Rajasthan (12.09.2002-RAJHC), further explaining how to appreciate evidence in a rape case in the following words: "14. Now, we take up the aspect as to whether having such intercourse amounts to offence of rape? According to Section 375, the sexual intercourse with the woman is rape, if it is had, either against her will, or without her consent, leaving apart the other four clauses, regarding consent. The other two requirements, i.e. against her will, and without her consent, are clearly disjunctive. The two clauses are intended to cover two separate contingencies, and are obviously disjunctive. The obvious effect is that once the Prosecutrix contends that the intercourse was had with her, without her consent, or against her will, that would, of necessity and always not mean that, there has always to be a struggle, or persistent struggle between the accused and the victim, so as to even bring about requisite bodily injuries on the persons of the victim, and at times on the person of the accused. The will, has also to be free will, and the consent has to be also free consent. We are conscious of the fact that there may be circumstances where a willing, or consenting Prosecutrix, may turn round and disown the willingness, or consent, so as to falsely convert a willing intercourse into an offence of rape, but then notwithstanding that danger, the requirements of section have to be satisfied, and this requirement, of absence of will, or absence of consent, is a brass question, of fact. To decide this question the Court may look for evidence, direct, or circumstantial, and on that basis, has to come to conclusion about absence of will, or consent, for finding the accused guilty. The task of the Court may be difficult to arrive at a conclusion of fact on this aspect, but then it cannot be shirked. It is at this place that for deciding this question one of the most material circumstance, which the Courts have been looking at, is the existence of injuries on the persons of the victim, as a strong circumstances, to negative the existence of consent, or will. However from that in our humble view, it would not be wholly correct to deduce the proposition that in every case where there is absence of injuries on the persons of victim, apart from the cases contemplated by remaining four clauses of Section 375, that the act was always had either with her consent, or with her will. The burden of proving the offence is of course of prosecution, but then in Section 375, the burden regarding the aspect, of will or consent is a negative burden on the prosecution, as the section requires the intercourse to have been had, against her will, or without her consent. Inherently in the very nature of things, though even the negative burden is to be discharged in the first instance by the prosecution, still the burden remains to be a negative burden, and to discharge the same, it may not always require that strong evidence, as is required to discharge a positive burden of proof. With the obvious result that, if the prosecution is able to discharge the negative burden, the Courts would be justified in expecting a proper rebuttal from the defence, by way of positive evidence to show that intercourse was had, with her consent, or with her will. This obviously may be required to be done, either by leading defence evidence, or by eliciting the facts from the prosecution evidence, or by bringing on record convincing circumstances, again whether by eliciting it by prosecution evidence, or by leading defence, as to why the prosecution is wrongly claiming, absence of will, or absence of consent. This obviously may be required to be done, either by leading defence evidence, or by eliciting the facts from the prosecution evidence, or by bringing on record convincing circumstances, again whether by eliciting it by prosecution evidence, or by leading defence, as to why the prosecution is wrongly claiming, absence of will, or absence of consent. It is for this purpose that the Court may reasonably comprehend the circumstances, by considering the suggestions made to the prosecution witnesses from the side of the defence, in cases where accused does not lead any evidence in defence, and at the same time may also take into consideration, the effect of the stand taken by the accused." 71. From the above, it is clear that to constitute consent under Section 375 IPC, it must be a voluntary participation, after fully understanding the act and consequences, the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure. Further, absence of will or consent is a negative burden on the prosecution and by the very nature of it, though negative burden is to be discharged in the first instance by the prosecution, still the burden remains to be a negative burden. However, to discharge the same, it may not always require that strong evidence as is required to discharge a positive burden of proof. The Hon'ble Supreme Court further went on to observe in the aforesaid case of Sohan Singh (supra) that the obvious result is that if the prosecution is able to discharge the negative burden, the Courts would be justified in expecting a proper rebuttal from the defence, by way of positive evidence to show that intercourse was had, with her consent, or with her will. This obviously would require either leading defence evidence, or eliciting facts from the prosecution evidence, or bringing on record convincing circumstances to show consent. This obviously would require either leading defence evidence, or eliciting facts from the prosecution evidence, or bringing on record convincing circumstances to show consent. From the above, one can draw the following conclusions : (i) that there must be voluntary participation by the prosecutrix fully knowing the consequences thereof; (ii) such consent must be discernible or be clearly shown to exist; (iii) that by the very nature of a negative burden of proof, to discharge it, it may not always require very strong evidence as is required to discharge a positive burden of proof; (iv) once absence of consent has been discharged, the onus obviously would be on the defence to prove otherwise either by adducing or by eliciting evidence from the prosecution evidence. 72. The defence had not adduced any evidence to prove presence of consent clearly but merely endeavoured to discredit the evidence of the Prosecutrix by contending that she had given several inconsistent and contradictory versions of the incident and that too by improving. The defence could not elicit any evidence from the prosecution evidence to show presence of consent. 73. Apart from endeavouring to discredit the evidence of the Prosecutrix, the appellants had also sought to discredit the evidence of the owner of the restaurant by asserting that he admitted during cross examination that while recording his statement the police had threatened him by warning that he would be booked as one of the accused unless he stated anything against the appellant Tarun, and out of fear, he gave further statements. But he also denied during cross examination that he was tutored by the police and that he kept changing his stories. It may be noted that the owner of the restaurant also gave his statement under Section 164 Cr. P.C., 1973 which was exhibited and proved which corroborated his testimony in the trial court on material parts of the prosecution that Tarun was seen engaging in an act of sexual intercourse, the girl was in an unstable condition when she left along with the appellants, vomit was found in the cabin and a bottle "White Magic" was recovered from the cabin used by them. The testimony of the restaurant owner corroborates the prosecution case. 74. The attempt to discredit the testimony of the owner of the restaurant on the ground that he was blackmailed by the police does not carry much water. The testimony of the restaurant owner corroborates the prosecution case. 74. The attempt to discredit the testimony of the owner of the restaurant on the ground that he was blackmailed by the police does not carry much water. The fact that he voluntarily gave his statement under Section 164 Cr. P.C., 1973 subsequently repeating similar narration dispels such doubt. Moreover, if the contention of the appellants is to be accepted, the testimony of approvers in criminal trial would have to be disbelieved. Therefore, merely because the police may have put some pressure on the owner of the restaurant as claimed by the appellants, it would not render the entire evidence of the restaurant owner non-believable. He was cross examined extensively, but he has remained consistent on crucial aspects as mentioned above and his testimony has not been shaken. Hence, this Court rejects the contentions of the appellants. 75. In support of the prosecution case, the prosecution adduced evidence of 22(twenty-two) witnesses including formal witnesses. On the other hand, the defence produced 2(two) witnesses who were technical persons to prove call detail records of Vodafone and Aircel networks. These witnesses have been produced by the defence in support of the claim that the Prosecutrix was very much in touch with the appellants before and prior to the alleged incident of rape and even during the time when the Prosecutrix was supposed to be unconscious or sleeping in the night of 20.10.2012 after she was brought to the residence of her aunt. However, during the cross examination, they admitted that these records do not show the contents of the SMSs and voice calls. Therefore, except for showing that there were communications between the mobile numbers, who and what were discussed cannot be shown. It was upto the appellants to discredit the evidences of the prosecution to show that the allegation of rape has not been proved beyond reasonable doubt either by discrediting the evidences adduced by the prosecution or prove presence of consent by the Prosecutrix in clear terms or adduce evidences to show consent. The appellants have chosen not to adduce evidences except the CDRs which have limited application as discussed above. The appellants have chosen not to adduce evidences except the CDRs which have limited application as discussed above. Therefore, this Court is to consider whether the appellants have been able to create reasonable doubt about the prosecution story or that the prosecution has not been able to prove rape beyond reasonable doubt, which in the opinion of this Court, for the reasons discussed above, the appellants have failed in their endeavour. 76. What is of importance in this case is to ascertain what actually transpired in the restaurant. If the appellants suggest that the Prosecutrix was a consenting adult to the sexual encounter, there is hardly any evidence to support such a contention, except for the statement of the appellant William that they had agreed to spend time together and that she engaged in oral sex. As we will advert to later on, the statement of appellant William does not inspire much confidence, in the face of other evidences on record. 77. It may be also noted that to agree to go for a "date" is very different from agreeing to have sexual intercourse. May be, the Prosecutrix being a growing up girl may have wanted to develop friendship with a male partner. That desire to have male friendship itself may also indicate the possibility of having some intimacy as suggested by the appellants and even in due course of time may lead to sexual intimacy. However, even such desire to have lighter moments and some intimacies like kissing or smooching as the appellant William claimed to have indulged in with the Prosecutrix cannot be construed to be giving consent by the Prosecutrix to indulge in sexual intercourse. At least the evidences on record and by reading the statement of the appellant William made under Section 313 Cr. P.C., 1973 do not suggest that the Prosecutrix was intending to have sex or she had encouraged the appellant to have sex with her when they set out for "date". Consent to have sexual intercourse is not be presumed or inferred from lighter moments one may share with another. P.C., 1973 do not suggest that the Prosecutrix was intending to have sex or she had encouraged the appellant to have sex with her when they set out for "date". Consent to have sexual intercourse is not be presumed or inferred from lighter moments one may share with another. If, in course of the evidence adduced by the prosecution, consent by the Prosecutrix is not clearly evident or if the appellants are not able to cast reasonable doubt on the prosecution case that the sexual intercourse was without her consent, it was incumbent upon the appellants to demonstrate that the Prosecutrix had consented to have sexual intercourse. After all, other than the Prosecutrix, the appellants were the only ones who knew what actually transpired with the Prosecutrix within the private space of a cabin in the restaurant. Of course, this Court is not suggesting that the initial onus is entirely on the appellants to prove that there was consent. Certainly, the initial onus is on the prosecution to prove its case. In the present case, the prosecution through the words of the Prosecutrix, the restaurant owner and the medical report and other evidences have established that there was rape. This situation can be reversed only by the appellants by their own evidence. However, they opted to take recourse of merely discrediting the evidence of the prosecution, rather than adduce positive evidence to prove consent. They failed to discharge the burden as contemplated under Section 106 of Evidence Act after the prosecution established its case. 78. Even assuming the statement of the appellant William to be correct that they were having privacy and that she performed oral sex on him, it still falls short of consent to have sex. Oral sex and vaginal sexual intercourse are not the same thing. The appellants however, denied having sex with the Prosecutrix. According to the appellants, the prosecution has not proved sexual intercourse and hence, the question of rape does not arise. According to them, there must be sexual intercourse and only when the same is against the will or consent of the girl that it will constitute rape. There can be no rape when there was no sexual intercourse according to the appellants. 79. If we examine the evidence of the Prosecution, it is evident that the Prosecutrix did not apparently resist to the act of penetrative sex. There can be no rape when there was no sexual intercourse according to the appellants. 79. If we examine the evidence of the Prosecution, it is evident that the Prosecutrix did not apparently resist to the act of penetrative sex. However, mere submission cannot be construed to be a consent. Merely because a woman does not physically resist to act shall not by the reason only of that fact, be regarded as consenting to the sexual activity. 80. The crucial issue, thus, now revolves round consent or lack of it. The Prosecutrix had testified that she was subjected to vaginal sexual intercourse by the appellants without her consent. She claimed that the appellants had sex with her when she was not able to control herself. She could not control herself as she was not in a fully conscious state because of consumption of intoxicating drink administered to her by the appellants. When the Prosecutrix claimed that she was subjected to sexual intercourse without her consent and she narrated her ordeal, we do not see any reason to doubt so in absence of contrary evidence. The Prosecutrix had testified before the Trial Court in very clear terms that she was compelled to consume certain drink which made her lose consciousness and taking advantage of such condition in which she could not offer resistance, both the appellants sexually assaulted her. The question is whether such unwilling sexual intercourse could have been imposed on her as claimed by the Prosecutrix or not. The fact that the Prosecutrix was administered certain drinks which made her lose consciousness stands corroborated by statement of the owner of the restaurant who saw the Prosecutrix trying to vomit with the help of the appellant. At the time of leaving the restaurant, when the appellant William left the girl Prosecutrix near the counter for sometime, the owner of the restaurant saw the girl falling down on the floor and thereafter she was taken to the car by the appellant William by supporting on her back. He also testified that he found remains of the vomit lying with the bottle of "White Magic" which was seized from the restaurant. The testimony of the owner of the restaurant indicates that the Prosecutrix was in some state of intoxication. Further, the evidences of the mother of the Prosecutrix (PW 1), the aunt (PW 4) etc. He also testified that he found remains of the vomit lying with the bottle of "White Magic" which was seized from the restaurant. The testimony of the owner of the restaurant indicates that the Prosecutrix was in some state of intoxication. Further, the evidences of the mother of the Prosecutrix (PW 1), the aunt (PW 4) etc. also show that the Prosecutrix had to be supported while being taken home. It has been also brought on record that the Prosecutrix slept for a long time in the night and was not in a position to talk properly. If the Prosecutrix had not consumed any intoxicating drink, the aforesaid conditions would have been absent. Her physical condition corroborates her claim that she was made to consume some intoxicating drink. The medical report also corroborates the prosecution case. The seizure of "White Magic" bottle, a brand of gin, an alcoholic drink supports her testimony. 81. The fact that the Prosecutrix was under the influence of intoxicating drink, was crying and was told by the appellant Tarun at the time having sexual intercourse with her that the pictures will be uploaded in the internet if she resists clearly indicates that she had not voluntarily participated in the sexual intercourse. In State of H.P. v. Mange Ram (2007) 7 SCC 244 : 2000 Cr LJ 4027, it was held that consent for the purpose of Section 375 IPC requires voluntary participation not only after exercise of intelligence based on knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assert, and whether there was consent or not, is to be ascertained only in a careful study of all relevant circumstances, as also held in Roop Singh (supra), Kaini Rajan (supra) and Sohan Singh (supra). In this case, we do not find any evidence of voluntary participation in the sexual acts/sexual intercourse by the Prosecutrix with the appellants. 82. The learned counsel appearing for the appellants have contended that the prosecution has not been able to prove the charges against the appellants beyond reasonable doubt and the evidences do not prove the offence of rape. In this regard, we may refresh ourselves of the law relating to the requirement of proof beyond reasonable doubt and about appreciation of evidence in a criminal trial and more particularly in rape cases. In this regard, we may refresh ourselves of the law relating to the requirement of proof beyond reasonable doubt and about appreciation of evidence in a criminal trial and more particularly in rape cases. As to the meaning and scope of "proof beyond reasonable doubt", it has been considered by the Apex Court in a number of cases by holding that there is no straight jacket formula to define this principle nor can it be measured with mathematical exactitude and would depend on the evidences obtaining in individual cases. As to how evidences have to be appreciated in criminal trials, there are various considerations which have to be kept in mind by the Court. 83. In this regard we may profitably refer to the decision in State of Karnataka v. Suvarnamma and anr., (2015) 1 SCC 323 wherein the Hon'ble Supreme Court referring to an array of earlier decisions observed as follows: "10. The court dealing with a criminal trial is to perform the task of ascertaining the truth from the material before it. It has to punish the guilty and protect the innocent. Burden of proof is on the prosecution and the prosecution has to establish its case beyond 7 reasonable doubt. Much weight cannot be given to minor discrepancies which are bound to occur on account of difference in perception, loss of memory and other invariable factors. In the absence of direct evidence, the circumstantial evidence can be the basis of conviction if the circumstances are of conclusive nature and rule out all reasonable possibilities of the accused being innocent. Once the prosecution probabilises the involvement of the accused but the accused takes a false plea, such false plea can be taken as an additional circumstance against the accused. Though Article 20(3) of the Constitution incorporates the rule against self-incrimination, the scope and the content of the said rule does not require the court to ignore the conduct of the accused in not correctly disclosing the facts within his knowledge. When the accused takes a false plea about the facts exclusively known to him, such circumstance is a vital additional circumstance against the accused. 11. ............ 12. We may refer to the well-known observations from decisions of this Court: 12.1. ............ 12.2. ............ 12.3. ............ 12.4. State of Haryana v. Bhagirath : (1999) 5 SCC 96 : 1999 SCC (Cri) 658 : (SCC pp. 100-01, paras 8-11) "8. 11. ............ 12. We may refer to the well-known observations from decisions of this Court: 12.1. ............ 12.2. ............ 12.3. ............ 12.4. State of Haryana v. Bhagirath : (1999) 5 SCC 96 : 1999 SCC (Cri) 658 : (SCC pp. 100-01, paras 8-11) "8. It is nearly impossible in any criminal trial to prove all the elements with a scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression 'reasonable doubt' is incapable of definition. Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the Judge. 9. Francis Wharton, a celebrated writer on criminal law in the United States has quoted from judicial pronouncements in his book Wharton's Criminal Evidence (at p. 31, Vol. 1 of the 12th Edn.) as follows: 'It is difficult to define the phrase "reasonable doubt". However, in all criminal cases a careful explanation of the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the Webster case Commonwealth v. Webster, 5 Cush 295 : 59 Mass 295 (1850). He says: "It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge." 10. In the treatise The Law of Criminal Evidence authored by H.C. Underhill it is stated (at p. 34, Vol. 1 of the 5th Edn.) thus: 'The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, with reason, entertain consistent with a conscientious desire to ascertain the truth. An honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. An honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt.' 11. .........." 12.5. Leela Ram v. State of Haryana : (1999) 9 SCC 525 : 2000 SCC (Cri) 222: (SCC pp. 532-33, paras 9-10) "9. Be it noted that the High Court is within its jurisdiction being the first appellate court to reappraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. In this context, reference may be made to the decision of this Court in State of U.P. v. M.K. Anthony (1985) 1 SCC 505 : 1985 SCC (Cri) 105. In para 10 of the Report, this Court observed: (SCC pp. 514-15) '10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals.' 10. In a very recent decision in Rammi v. State of M.P. : (1999) 8 SCC 649 : 2000 SCC (Cri) 26 this Court observed: (SCC p. 656, para 24) '24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.' This Court further observed: (SCC pp. 656-57, paras 25- 27) '25. It is a common practice in trial courts to make out contradictions from the previous statement of a witness for confronting him during cross-examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. The material portion of the section is extracted below: "155. Impeaching credit of witness.-The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the court, by the party who calls him- (1)-(2) * * * (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;" 26. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be "contradicted" would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross-examiner to use any former statement of the witness, but it cautions that if it is intended to "contradict" the witness the cross-examiner is enjoined to comply with the formality prescribed therein. Section 162 of the Code also permits the cross-examiner to use the previous statement of the witness (recorded under Section 161 of the Code) for the only limited purpose i.e. to "contradict" the witness. 27. To contradict a witness, therefore, must be to discredit the particular version of the witness. Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would not be helpful to contradict that witness (vide Tahsildar Singh v. State of U.P. AIR 1959 SC 1012 : 1959 Cri LJ 1231)'" 12.6. State of H.P. v. Lekh Raj : (2000) 1 SCC 247 : 2000 SCC (Cri) 147 : (SCC pp. 259-60, para 10) "10. The High Court appears to have adopted a technical approach in disposing of the appeal filed by the respondents. This Court in State of Punjab v. Jagir Singh : (1974) 3 SCC 277 : 1973 SCC (Cri) 886 held: (SCC pp. 285-86, para 23) '23. A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. This Court in State of Punjab v. Jagir Singh : (1974) 3 SCC 277 : 1973 SCC (Cri) 886 held: (SCC pp. 285-86, para 23) '23. A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex-facie trustworthy on grounds which are fanciful or in the nature of conjectures.' The criminal trial cannot be equated with a mock scene from a stunt film. The legal trial is conducted to ascertain the guilt or innocence of the accused arraigned. In arriving at a conclusion about the truth, the courts are required to adopt a rational approach and judge the evidence by its intrinsic worth and the animus of the witnesses. The hyper-technicalities or figment of imagination should not be allowed to divest the court of its responsibility of sifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstance keeping in view the peculiar facts of each case, the social position of the victim and the accused, the larger interests of the society particularly the law and order problem and degrading values of life inherent in the prevalent system. The realities of life have to be kept in mind while appreciating the evidence for arriving at the truth. The courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hyper-technical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial. The courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hyper-technical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial. Criminal jurisprudence cannot be considered to be a utopian thought but have to be considered as part and parcel of the human civilisation and the realities of life. The courts cannot ignore the erosion in values of life which are a common feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting society and mankind." 12.7. ............ 12.8. .............." 12.9. Zahira Habibullah Sheikh (5) v. State of Gujarat : (2006) 3 SCC 374 : (2006) 2 SCC (Cri) 8 : (SCC pp. 395-97, paras 37 and 40) "37. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact in issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not about over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny. * * * 40. ... Consequences of defective investigation have been elaborated in Dhanaj Singh v. State of Punjab (2004) 3 SCC 654 : 2004 SCC (Cri) 851. It was observed as follows: (SCC p. 657, paras 5-7) '5. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (See Karnel Singh v. State of M.P. (1995) 5 SCC 518 : 1995 SCC (Cri) 977) 6. In Paras Yadav v. State of Bihar (1999) 2 SCC 126 : 1999 SCC (Cri) 104 it was held that if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined de-hors such omissions to find out whether the said evidence is reliable or not, the contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party. 7. As was observed in Ram Bihari Yadav v. State of Bihar (1998) 4 SCC 517 : 1998 SCC (Cri) 1085 if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law-enforcing agency but also in the administration of justice. The view was again reiterated in Amar Singh v. Balwinder Singh (2003) 2 SCC 518 : 2003 SCC (Cri) 641.'" 12.10. .........................." 12.11. State of Rajasthan v. Jaggu Ram (2008) 12 SCC 51 : (2009) 1 SCC (Cri) 317 : (SCC pp. 60-62, paras 27-29) "27. In our considered view, this was a fit case for invoking Section 106 of the Evidence Act, which lays down that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In Ram Gulam Chaudhary v. State of Bihar (2001) 8 SCC 311 : 2001 SCC (Cri) 1546 this Court considered the applicability of Section 106 of the Evidence Act in a case somewhat similar to the present one. This Court noted that the accused after brutally assaulting a boy carried him away and thereafter the boy was not seen alive nor his body was found. The accused, however, offered no explanation as to what they did after they took away the boy. This Court noted that the accused after brutally assaulting a boy carried him away and thereafter the boy was not seen alive nor his body was found. The accused, however, offered no explanation as to what they did after they took away the boy. It was held that for the absence of any explanation from the side of the accused about the boy, there was every justification for drawing an inference that they had murdered the boy. It was further observed that even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The accused by virtue of their special knowledge must offer an explanation which might lead the court to draw a different inference. 28. In Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681 : (2007) 1 SCC (Cri) 80 a two-Judge Bench of which one of us (G.P. Mathur, J.) was a member, considered the applicability of Section 106 of the Evidence Act and observed: (SCC pp. 689-91, paras 13-15) '13. .................. 14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions 1944 AC 315 : (1944) 2 All ER 13 (HL)-quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads: "(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him." 15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.' Similar view has been expressed in State of Punjab v. Karnail Singh, State of Rajasthan v. Kashi Ram (2006) 12 SCC 254 : (2007) 1 SCC (Cri) 688 and Raj Kumar Prasad Tamarkar v. State of Bihar (2007) 10 SCC 433 : (2007) 3 SCC (Cri) 716. 29. We are sure, if the learned Single Judge of the High Court had adverted to Section 106 of the Evidence Act and correctly applied the principles of law, he would not have committed the grave error of acquitting the respondent." 84. About the standard of proof, the Hon'ble Supreme Court in State of U.P. v. Awdhesh, (2008) 16 SCC 238 held that, "11. "22. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. About the standard of proof, the Hon'ble Supreme Court in State of U.P. v. Awdhesh, (2008) 16 SCC 238 held that, "11. "22. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to 'proof' is an exercise particular to each case. Referring to the interdependence of evidence and the confirmation of one piece of evidence by another, a learned author says [see 'The Mathematics of Proof II': Glanville Williams, Criminal Law Review, 1979, by Sweet and Maxwell, p. 340 (342)]: 'The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A junior may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions, and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other.' 23. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. 24. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. It must grow out of the evidence in the case. 24. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the Judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimisation of trivialities would make a mockery of administration of criminal justice. This position was illuminatingly stated by Venkatachaliah, J. (as His Lordship then was) in State of U.P. v. Krishna Gopal (1988) 4 SCC 302 : 1988 SCC (Cri) 928." 85. Here is a girl child of about 16 years and 7 months when the incident occurred where she accused the appellants of raping her. No doubt, the girl was acquaintant with the appellants, but at the same time did not have close and intimate relationship with either of the appellants. The fact that the appellants had spent some time together in a secluded cabin of a restaurant is not disputed. It is not the case of anyone that there were other customers of the restaurant in the cabin where they had spent time together. The statement of the appellant William that they had oral sex itself clearly indicates that it was a secluded and private cabin. The appellants and the girl only knew very well what transpired within the confines of the cabin. The girl had given her version of the incident. The Prosecutrix claimed that she was given drinks mixed with intoxicant and taking advantage of her intoxicated condition the appellants raped her. The appellants however, adduced no evidence in support of their own defence and preferred to discredit the prosecution evidences to claim that the charge of rape is not proved. Appellant William, however, gave statement under Section 313 Cr. P.C., 1973 and he admits that he was in relationship with the Prosecutrix. He and the Prosecutrix had agreed to "enjoy to the fullest and have drinks together", as suggested by the appellant William while cross examining the Prosecutrix. Appellant William, however, gave statement under Section 313 Cr. P.C., 1973 and he admits that he was in relationship with the Prosecutrix. He and the Prosecutrix had agreed to "enjoy to the fullest and have drinks together", as suggested by the appellant William while cross examining the Prosecutrix. Though, appellant William in his statement made under Section 313 Cr. P.C., 1973 stated that they had hugged and smooched each other in the restaurant and thereafter she performed oral sex on him, he does not state that they had sexual intercourse thereafter. The appellant William admits upto having oral sex but does not admit sexual intercourse with her. If the Prosecutrix had consented to perform oral sex on him in a secluded place with consent, one may say it could have lead to sexual intercourse with her consent, which is not unnatural. But the appellant William does not say that they had sexual intercourse. If the girl had agreed to perform oral sex on the appellant William, she could have had sex with him and why should she allege rape against him? If she wanted to enjoy to the fullest after drinking as suggested by the appellant William, it could possibly lead to sexual intercourse and she could have given consent to sexual intercourse, in which event, it cannot be rape. Yet, none of the appellants say that they had sexual intercourse with the girl. The question which, therefore, arises is why should the girl make a false allegation of rape against the appellants. No such reason can be envisaged for the reason that the appellants have not stated anything either by adducing evidence or through suggestions during cross examination, though no one else except themselves could have explained the position clearly as it is only them and the girl who were in the cabin most of the time. Of course, it has been faintly suggested that the girl wanted to elope with William but after he refused to elope, she falsely made the allegation of rape. It was suggested and indirectly hinted at the time of argument that she must have agreed to have sexual intercourse with William but after he refused to elope with her, she must have changed her mind and she accused the appellants of rape. It was suggested and indirectly hinted at the time of argument that she must have agreed to have sexual intercourse with William but after he refused to elope with her, she must have changed her mind and she accused the appellants of rape. The proposition of the appellants would be that she had initially consented and agreed to have sex in the belief that William will marry her. Since it did not materialise and William refused to elope with her, she falsely claimed that she was raped. Though seemingly plausible, it cannot be accepted. In the first place, the appellants including William never admitted having sexual intercourse with the girl. In that event, the girl must have cooked up the story of rape. But why should she cook up the story of rape, if there was no sexual intercourse? The obvious reply, according to the appellants, is to blackmail the appellants. But this was never the plea of the appellants either specifically by adducing evidence or through unambiguous suggestions during the cross examination. The appellant William, as mentioned above, claimed to have indulged in consensual oral sex only. Nothing more than that, and certainly not sexual intercourse, though it could have been a natural consequence, if the girl really wanted to have fun after having drinks and also oral sex. Interestingly, though it was suggested to the Prosecutrix during the cross examination that they wanted to have fun after drinks, the appellants endeavoured to show that they did not have drink with the girl. But the appellants were the only persons other than the girl who were privy to the incident in the restaurant, but they opted not to speak up by adducing evidence. Of course, the appellant William gave his version in his statement made under Section 313 Cr. P.C., 1973 But his narration does not conform to the evidences brought on record. The medical evidence clearly indicated recent sexual intercourse. The owner of restaurant witnessed the appellant Tarun having sex and saw unstable condition of the girl, which was also witnessed by other witnesses (her relatives). Recovery of "White Magic" which is a bottle meant for an alcoholic drink, "gin" from the restaurant had been also proved which supports the prosecution version. There is another intriguing statement made by the appellant William when questioned by the Trial Court after closing of the Prosecution evidence. Recovery of "White Magic" which is a bottle meant for an alcoholic drink, "gin" from the restaurant had been also proved which supports the prosecution version. There is another intriguing statement made by the appellant William when questioned by the Trial Court after closing of the Prosecution evidence. When the Trial Court drew his attention to the evidence of the mother of the Prosecutrix that the appellant William had fallen at the feet of the mother of the Prosecutrix for forgiving him and he even said that he was ready to marry the Prosecutrix, the appellant stated that it was correct. If the appellant indeed had not committed any wrongful act, why should he fall at the feet of the mother of the Prosecutrix and seek forgiveness? It clearly indicates that appellant William did something very seriously wrong. Yet, even though he had the opportunity to clarify this issue, he never ventured to do so. 86. We do not find any tangible or plausible reason why the Prosecutrix, a girl about 16 years and 7 months should be telling a lie that she had been raped by two grown up mature men. There is no indication that the Prosecutrix was tutored by anyone, including her mother or the police. In this regard, we refer to the decision of the Hon'ble Supreme Court in Rajinder @ Raju v. State of H.P. AIR 2009 Supreme Court 3022, wherein it was observed that, "21. In the context of Indian Culture, a woman victim of sexual aggression would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no self-respecting woman would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for. But for high improbability in the prosecution case, the conviction in the case of sex crime may be based on the sole testimony of the prosecutrix. But for high improbability in the prosecution case, the conviction in the case of sex crime may be based on the sole testimony of the prosecutrix. It has been rightly said that corroborative evidence is not an imperative component of judicial credence in every case of rape nor the absence of injuries on the private parts of the victim can be construed as evidence of consent." 87. We do not find any evidence to indicate that the Prosecutrix is a frivolous, fun loving, easy going girl who had been having intimate relationship with either of the appellants. On the other hand, she seems to have been traumatised by the experience and she recalled fully the incident gradually as she recovered from her trauma. This Court is not holding that rape has been established merely because of failure on the part of the appellants to explain the inculpatory evidences. This Court finds that the appellants had a duty to explain the allegations against them since the Prosecution has been able to prove that the appellants had engaged in sexual intercourse with the girl without her consent. We also hold that the appellants have failed to discredit the evidences adduced by the Prosecution which clearly indicate rape by the appellants. We hold that the appellants had engaged in sexual intercourse with the Prosecutrix without her consent as non resistance by her under the influence of the intoxicating drink cannot be said to be consent. The appellants have failed to indicate presence of consent by the Prosecutrix while engaging in sexual intercourse. 88. We would now deal with the applicability of some of the decisions cited by the appellants in support of their contentions in this case. (i) Rai Sandeep v. State, (2012) 8 SCC 21 . Relying on the aforesaid decision, it has been submitted that the Court can accept the version of a "sterling witness" without any corroboration and based on such evidence the guilty can be punished. It has been held that the "sterling witness" should be of very high quality and caliber whose version, be unassailable. There should not be any prevarication in the version of such a witness. Such a version should have Co-relation with each and everyone of other supporting material such as the recoveries made, the manner of offence committed, the scientific evidence and the expert opinion. There should not be any prevarication in the version of such a witness. Such a version should have Co-relation with each and everyone of other supporting material such as the recoveries made, the manner of offence committed, the scientific evidence and the expert opinion. It should consistently match with the version of every other witness and should withstand the cross examination of any length. The version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged. It has been submitted by the appellants that in the present case, the prosecutrix cannot be said to be a "sterling witness", primarily on whose evidence trial court has convicted the appellants. It has been submitted that the evidence of the prosecutrix is not reliable as she has improved her case and also made inconsistent statements. However, it may be noted that in the aforesaid case of Rai Sandeep (supra), the Hon'ble Supreme Court found that the eyewitnesses did not support the story of the prosecution. The Hon'ble Supreme Court also found that apart from the prosecutrix not supporting her own version, the other oral as well as forensic evidence did not support the case of the prosecution and there were material contradiction leave alone lack of corroboration in the evidence of the prosecutrix. It may, however, be noted that in the present case, it is not so. Though there are some minor variations as already discussed above, these do not materially affect the version of the Prosecutrix. The Prosecutrix has been consistently maintaining right from the beginning that she was made to drink an intoxicating drink by the appellants and taking advantage of her debilitating condition, the appellants raped her. The only material improvement which was made by the Prosecutrix is that though in the FIR and also in her initial statements made before the police, the Prosecutrix did not make any allegation against appellant Tarun of raping her she did so later on. The only material improvement which was made by the Prosecutrix is that though in the FIR and also in her initial statements made before the police, the Prosecutrix did not make any allegation against appellant Tarun of raping her she did so later on. However, as discussed above, the prosecutrix has been able to explain the said inconsistency which this Court does not find to be unnatural, unreliable, or unreasonable in the facts and circumstances of the case. Otherwise, the version of the prosecutrix was corroborated in all material areas by other witnesses and also by medical evidence. The conviction of appellants is not based solely on the testimony of the Prosecutrix but on being corroborated by other witnesses and evidences as discussed above. Hence, this Court is of the view that the aforesaid decision in Rai Sandeep (supra) will not be applicable in the present case. (ii) Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 . The appellant William also has relied on the decision in Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 . In the aforesaid case, the Hon'ble Supreme Court observed that if the Prosecutrix had come to know the names of all the accused during the course of the occurrence, there is no reason why she should not have named all of them in the FIR and such omission speaks volumes against her and her credibility stands shaken. In the aforesaid case, admittedly, the Prosecutrix had travelled certain distance in a Maruti van after her alleged abduction but she did not raise any alarm for help. This showed her conduct and behavior during the whole process and rendered her evidence shaky and untrustworthy. The Hon'ble Supreme Court also noted several significant variations in material facts in her statements made under Section 164, 161 Cr. P.C., 1973 FIR and deposition in the Court and accordingly, held that it was necessary to get her evidence corroborated independently. Learned counsel for the appellant William has contended that in the present case also it is an admitted fact that the Prosecutrix had gone with both the appellants to the restaurant. However, she chose to charge only one of the appellants, namely, William of raping her initially and she added the name of Tarun subsequently as the other rapist. She also never raised any alarm. These, according to the appellants, are fatal. However, she chose to charge only one of the appellants, namely, William of raping her initially and she added the name of Tarun subsequently as the other rapist. She also never raised any alarm. These, according to the appellants, are fatal. The name of the appellant Tarun did not find mention in the FIR nor in her initial statement made to the police which renders the evidence of the prosecutrix unreliable, untrustworthy. As discussed above, this Court does not find such inconsistency to be fatal. It has been also alleged that the Prosecutrix in the present case did not raise any alarm. The question of raising any alarm in the present case does not arise in as much as it was not the case of abduction as the Prosecutrix voluntarily went with the appellants to the restaurant. The prosecutrix also did not raise any alarm in the restaurant also, as she was under the influence of intoxication. Further, it may be noted that the rape was committed on her by two known persons and since she was under the influence of the intoxicating drink and being a young girl of about 16 years and 7 months, it would have been a very traumatic experience for her. Therefore, failure to raise alarm cannot be said to be an unnatural act on the part of the Prosecutrix. (iii) Narender Kumar v. State (NCT of Delhi), (2012) 7 SCC 171 . Counsel for the appellant William has also relied on the decision in Narender Kumar v. State (NCT of Delhi), (2012) 7 SCC 171 wherein the Hon'ble Supreme Court held that where evidence of the Prosecutrix is found suffering from serious infirmities and inconsistencies with other materials and where the Prosecutrix made deliberate improvement on material point with a view to rule out consent on her part and there being no injury on her person, no reliance can be placed upon her evidence. It had been submitted that in the present case the evidence of the Prosecutrix suffers from various infirmities, inconsistencies and she also improved her version in the subsequent statements made. This Court, having already discussed the issues of alleged infirmities and inconsistencies has come to the conclusion that there are no such material infirmities or inconsistencies. It had been submitted that in the present case the evidence of the Prosecutrix suffers from various infirmities, inconsistencies and she also improved her version in the subsequent statements made. This Court, having already discussed the issues of alleged infirmities and inconsistencies has come to the conclusion that there are no such material infirmities or inconsistencies. This Court also does accept the plea of the appellants that there was deliberate improvement on material points in as much as the prosecutrix had been claiming right from the beginning that she was given intoxicating drinks and taking advantage of her condition she was raped by the appellants. If the girl narrates more detail account of the rape after she recovers from trauma, it can not be said to be material improvement or inconsistence. Accordingly, this Court is of the view that the aforesaid case of Narender Kumar (supra) is also not applicable in the present case. (iv) Mussaudin Ahmed v. State of Assam, (2009) 14 SCC 541 . Learned counsel for the appellant William has also relied on the decision of the Hon'ble Supreme Court in Mussaudin Ahmed v. State of Assam, (2009) 14 SCC 541 in which the Hon'ble Supreme Court observed that the Prosecutrix had enough time and opportunities to inform police or any other person in the hotel or on the road about the incident and she remained with the appellant for a very long time and had been roaming in the city by rickshaw and buses. In the said case, it was also noted that she had gone to the hotel without any protest and accompanied the appellant to the room, spent the whole night with him, came out in the morning after checking out the hotel, travelled with him in a rickshaw from hotel to Musafirkhana but did not raise any hue and cry and did not inform anybody that the appellant had misbehaved with her in any manner. However, it may be noted that the facts in the present case are totally in variation with the aforesaid case in as much as though the petitioner had gone with the appellants voluntarily and spent some time in the restaurant and she was dropped by the appellants in the place near her house in a car while she was still under the dazed condition as she was known to both the appellants. The facts in the present case are thus completely different with the aforesaid case and accordingly, this Court is of the view that the aforesaid decision also will not be applicable in the present case. (v) G.B. Patel v. State, AIR 1979 SC 135 . Learned counsel for the appellant William has also relied on the decision of the Hon'ble Supreme Court in G.B. Patel v. State, AIR 1979 SC 135 stating that the investigating officer was taking a long time to decide to give shape to the case and as such, the prosecution case is doubtful. In the present case, it is true that the prosecutrix gave several statements to the police but one of the reasons was the change of the investigating officer. Further, it may be noted that the girl was in a traumatic condition and she was narrating the incident more clearly after recovering from the trauma. Hence, this Court holds that the aforesaid case is also not applicable. (vi) Sujit Biswas v. State of Assam, (2013) 12 SCC 406 . It has been also submitted relying on the decision of Sujit Biswas v. State of Assam, (2013) 12 SCC 406 that the prosecution was not able to prove the evidence of rape beyond reasonable doubt. It has been submitted that there is also a distinct possibility that the Prosecutrix had alleged rape against the appellants only after the appellant William refused to elope with her. This Court, however, has already held that such explanation was never contemplated and also does not bear from the evidence on record. In fact, it was never the plea of the defence that the Prosecutrix wanted to elope with the appellant William and it was also not stated so by William in his statement made under Section 313 Cr. P.C., 1973. The case of the appellant William was that he and the prosecutrix had agreed to have fun together and they engaged in oral sex. Nothing was mentioned about any proposal by the Prosecutrix to elope with the appellant after the aforesaid sexual encounter. If indeed it was the intention of the prosecutrix, William would have mentioned so in his statement. But, for reasons best known to him he did not mention it. Hence, this Court is of the view that this decision is also not applicable to the present case. 89. If indeed it was the intention of the prosecutrix, William would have mentioned so in his statement. But, for reasons best known to him he did not mention it. Hence, this Court is of the view that this decision is also not applicable to the present case. 89. Learned counsel for the appellant William has also relied on the following decisions in Sujit Biswas v. State of Assam, (2013) 12 SCC 406 , Surendra Singh v. State of Rajasthan, (2011) 15 SCC 78, Gangabhavani v. RV Reddy, (2013) 15 SCC 298 and Rajkumar Singh v. State of Rajasthan, (2013) 5 SCC 722 in support of his contention that there had been material omissions and improvements in the prosecution case which renders the prosecution case doubtful. This Court for the reasons already discussed above has held that the omissions or improvements are only minor and not material which would have no affect on the credibility of the prosecution case. The appellant also relied on the decision in Gangaram v. The Crown, AIR 1950 Nagpur 9 that since the genital injuries of the victim could be caused by insertion of finger as stated by the medical officer it cannot be said that the injuries received by the prosecutrix in this case was caused by sexual intercourse with the appellants. Merely because it was stated by the medical officer that such injury could have been caused by fingers, such evidence could not be ignored as it corroborates with the allegations of the Prosecutrix that she was subjected to sexual intercourse by the appellants. There is no other evidence to support the contention of the appellants. 90. Learned counsel for the appellant has also relied on the decision in Prasant Bharti v. State, (2013) 9 SCC 293 to submit that call details report of the mobile phones used by the Prosecutrix and the appellants would clearly indicate that it was the Prosecutrix who had initiated the proposal for meeting and also she had made attempts to keep in touch with the appellants in the night when the alleged rape took place, even though the Prosecutrix had claimed that she was sleepy. This Court has already discussed this aspect with reference to the call details report and this Court has found that the call details report do not contradict the version of the Prosecutrix. 91. This Court has already discussed this aspect with reference to the call details report and this Court has found that the call details report do not contradict the version of the Prosecutrix. 91. Learned counsel for the appellant Tarun also relied on the aforesaid decisions cited by learned counsel for the appellant William about the inconsistent statements, improvements made in the version of the Prosecutrix and contradictions in the versions of the Prosecutrix and that the Prosecutrix cannot be said to be "sterling witness" at all, for convicting the appellants. It has been submitted that the evidence of the Prosecutrix is not corroborated in material aspects. It has been submitted that there is no proof that the Prosecutrix was made to consume intoxicating drinks and it was also not proved that the appellants had engaged in sexual intercourse with the Prosecutrix without her consent and the fact that statement of the Prosecutrix unreliable is amply proved by the call details report of the mobile phones used by her and the appellants. This Court, for the reasons already discussed above, however, does not find merit in the aforesaid submissions. 92. Learned counsel for the appellants relying on the decision of the Hon'ble Gauhati High Court in Deuti Gogoi @ Jogesh Gogoi v. State of Assam, 2012 (3) GLT 106 has submitted that the conviction of the appellants under section 376(2)(g) IPC, as it stood prior to amendment in 2013 is not sustainable. It has been submitted that in order to constitute the offence of gang rape within the meaning of Section 376(2)(g)IPC, there must be a group of persons with more than 2(two) persons constituting the group with the common intention to commit rape on the victim women. It has been submitted by appellants that in the present case there is no allegation or evidence that the alleged rape had been committed by more than 2(two) persons constituting a gang, and as such the conviction of the appellants under the aforesaid section 376(2)(g) IPC is illegal. The main contention of the appellants, therefore, seems to be that 2(two) persons cannot form a gang and there has to be more than 2(two) persons to form a gang to attract the aforesaid provision. The main contention of the appellants, therefore, seems to be that 2(two) persons cannot form a gang and there has to be more than 2(two) persons to form a gang to attract the aforesaid provision. In this regard, we may refer to Explanation 1 of the aforesaid Section 376(2)(g) IPC which reads as follows, "Explanation 1.-Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section." It may be stated that the Penal Code does not define as to what a "gang" means. One may therefore seek to understand its meaning from the aforesaid Explanation no. 1. The aforesaid Explanation no. 1 also does not define the word "gang". It merely explains that where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape. It thus, refers to the word "group". We, therefore, refer to the dictionary meaning to understand what the word "group" means. As mentioned in the Explanation 1, a group of persons obviously means a number of persons who are more than one. The question is whether two persons can form a "group". A "group", according to Oxford Dictionary means a number of people or things that are located, gathered, or classed together. While defining "group" with reference to air force in military, it has been defined as a division of an air force consisting of two or more stations. Similarly, with reference to "art" it has been defined as two or more figures or objects forming a design. It may be noted that Merriam Webster Dictionary defines "group" as two or more figures forming a complete unit in a composition. Merriam Webster Dictionary further defines "group" with reference to molecule as two or more atoms joined together forming part of a molecule. From the above, one cannot say that in order to form a "group", the constituents must be more than two and that only two constituents cannot form a group. Explanation no. 1 referred to Section 376 IPC, does not also indicate that a group of persons referred to has to consist of three or more persons and two persons cannot form a group. Explanation no. 1 referred to Section 376 IPC, does not also indicate that a group of persons referred to has to consist of three or more persons and two persons cannot form a group. In this regard, one may refer the decision of Hon'ble Supreme Court in Pradeep Kumar v. Union Administration Chandigarh, 2006 (10) SCC 608 in which it has been held that to bring the offence of rape within the purview of Section 376(2)(g)IPC, read with Explanation (1) to this Section, the prosecution has to prove:- "(i) that more than one person had acted in concert with the common intention to commit rape on the victim ; (ii) that more than one accused had acted in concert in commission of crime of rape with pre-arranged plan, prior meeting of mind and with element of participation in action. Common intention would be action in consort in pre-arranged plan or a plan formed suddenly at the time of commission of offence which is reflected by the element of participation in action or by the proof of the fact of inaction when the action would be necessary. The prosecution would be required to prove pre-meeting of minds of the accused persons prior to commission of offence of rape by substantial evidence or by circumstantial evidence; and (iii) that in furtherance of such common intention one or more persons of the group actually committed offence of rape on victim or victims. Prosecution is not required to prove actual commission of rape by each and every accused forming group." Thus, this Court is of the opinion that insisting that the number of persons to form a group should be minimum three and that two persons cannot form a group cannot be said to be the correct view of the meaning of "group". In view of the above, this Court respectfully disagrees with the view taken in Deuti Gogoi @ Jogesh Gogoi (supra). In the present case, it has been found that the two appellants had gone out with the Prosecutrix to the restaurant and had spent time together there. The Prosecutrix also had stated that she was raped by the appellants one after another in presence of the other and they had come out together after the incident and they dropped her near the house of the Prosecutrix. The Prosecutrix also had stated that she was raped by the appellants one after another in presence of the other and they had come out together after the incident and they dropped her near the house of the Prosecutrix. Therefore, the common intention of the appellants are clearly made out and accordingly, this Court does not find fault with the Trial Court in convicting the appellants under Section 376(2) (g) of the IPC. 93. From the above analysis and discussion of evidences in the light of the relevant law in this regard, we also hold that it is proved beyond reasonable doubt that there was sexual intercourse by both the appellants in turn with the Prosecutrix without her consent, after administering intoxicating drink to her, which disabled her from resisting the sexual intercourse by both the appellants. Hence, commission of the offence under Section 375(2)(g) IPC is proved against the appellants. 94. For the same reasons, we are not inclined to disturb the findings of the Trial Court in convicting the appellants under Section 120-B IPC. 95. We, for the reasons discussed above, do not find any merit in the present appeals to interfere with the findings and conclusions of the Trial Court. Accordingly, both the appeals are dismissed.