JUDGMENT : Kailash Prasad Deo, J. All these three criminal appeals are arising out of common judgment of conviction dated 12.02.2014 and order of sentence dated 14.02.2014, passed by learned Additional Sessions Judge-I, F.T.C., East Singhbhum, Jamshedpur in Sessions Trial No. 356 of 2012, whereby all the four appellants, Jhota Singh @ Gurucharan Singh, Rahul Kisku @ Dadu, Suresh Tudu and Binod Hansda have been held guilty for the offence committed and punishable under Sections 376 (2) (g), 323/34 and 341/34 of the Indian Penal Code. Jhota Singh @ Gurucharan Singh and Rahul Kisku @ Dadu have further been held guilty for the offence committed and punishable under Sections 379/34 and 427/34 of the Indian Penal Code. Suresh Tudu and Binod Hansda have been acquitted from the charge under Section 379/34 and 427/34 of the Indian Penal Code. The learned trial Court has awarded rigorous imprisonment for ten years with fine of Rs.5,000/-each and in case of default in payment of fine further rigorous imprisonment for two months for the offence committed and punishable under Section 376 (2) (g) of the Indian Penal Code; rigorous imprisonment for one year for the offence committed and punishable under Section 323/34 of the Indian Penal Code and simple imprisonment for one month for the offence committed and punishable under Section 341/34 of the Indian Penal Code to all the four accused persons. Appellants, Jhota Singh @ Gurucharan Singh and Rahul Kisku @ Dadu have further been awarded rigorous imprisonment for three years for the offence committed and punishable under Section 379/34 of the Indian Penal Code and rigorous imprisonment for two years for the offence committed and punishable under Section 427/34 of the Indian Penal Code. All the sentences are directed to run con-currently. 2. The prosecution case is based upon fardbeyan of the victim (whose name has been not disclosed herein in view of Section 228 IPC), P.W.2 recorded by Inspector, S. N. Rajak of Mango (M) Circle on 15.07.2011 at 00.15 hours in Haludbani village, whereby the informant has alleged that she is residing at G.T. Hostel No.3, Room No.15, P.S. Kadma, District – East Singhbhum and pursuing diploma course at R.D. Tata Technical Institute at Jamshedpur in Electronics. She has stated that she had to go to Pune on Sunday for interview. She has stated that she had to go to Pune on Sunday for interview. The informant has stated that two years senior to her in the same institute, Kumar Saurav, son of Amod Kumar Madhukar, resident of L/5-10 road no.2, Agrico who is working as Junior Engineer in Tata Steel is known to her and she has fallen in love with him. Both used to roam around. It is stated that on 14.07.2011 at around 6.00 P.M. Saurav made a telephonic call, proposing the victim to go for outing in the evening. As per plan at 7.00 P.M. Saurav came with car. Both left hostel, in the car and reached Patamada Dimna Tata triangular junction of road at around 7.30 P.M. and at a distance of 150 meters towards the East, the car was stopped, they were siting in the car and were talking and embracing. In the meantime 3-4 boys suddenly came there and started knocking the door of the car by saying that you people are doing some wrong and as such, open the door. It is stated by the informant that in the meantime one boy who was wearing yellow color round neck baniyan hit on the glass of the door of driver side by means of a danda due to which the glass has broken and caused injury on the hand and other parts of the body of Saurav and also tried to snatch the key of the car, which was protested by Saurav. One of the accused having height of 5' 5”, black in color, tall, broad face, small hair, wearing jeans started quarreling with Saurav, who tried to caught hold of him. Saurav chased them. In the meantime another accused has taken the Mobile phone bearing SIM No. 8092549657 of the informant, which was given to her by Saurav. The accused have also taken the Nokia Mobile of Saurav bearing SIM No.8092294341 and started chasing Saurav. After sometime one of the accused tried to open the door of the victim side. The victim under fear tried to save herself and started feeling away towards the West direction on the road. After 100 meters towards West, one of the accused, who was wearing yellow baniyan suddenly appeared from the right side of the bushes, caught hold of her, dragged her after gagging her mouth. The victim under fear tried to save herself and started feeling away towards the West direction on the road. After 100 meters towards West, one of the accused, who was wearing yellow baniyan suddenly appeared from the right side of the bushes, caught hold of her, dragged her after gagging her mouth. The informant tried to raise brawl but in the meantime another accused had also appeared. Both the accused persons took the victim in the bushes of Putus. After thrashing her under the Sal tree, the accused who was wearing a check shirt caught hold of both her hand and accused, who was wearing yellow baniyan after removing her cloths committed rape upon her even though the informant has made protest. The informant has further stated that she tried to raise brawl for help. After sometime, she saw some light of a torch, which was coming on the road towards her side. After seeing the light of torch, both the accused persons fled away. The torch light was of Bromo Security guard before whom the informant made request for help but without giving any help they showed the road to the informant. Thus, under compulsive circumstances the informant under fear went towards the West. It is further stated that as soon as she reached near 20-25 yard before M.G.M. Patamada, one motor cycle was parked there and two persons were sitting on top of nearby elevated place. The informant was proceeding ahead. After going about 100 yards, the two accused persons came on black motorcycle, caught hold of her near the Dimna lake. One of the accused dragged her towards the lake and other accused person was parking the motorcycle. In the meantime one light of vehicle appeared from the village-Haludbani side, then the informant tried to raise brawl but she was caught and her face was put inside the water to hide her and after the vehicle went away she was taken towards the right at a distance of 20 meters near bushes and both of them committed rape upon her one after another, even though she made a protest. The informant has further stated that after committing rape the accused persons have said that you may go any where when the vehicle will come and thereafter both the accused persons went towards the South. The informant has further stated that after committing rape the accused persons have said that you may go any where when the vehicle will come and thereafter both the accused persons went towards the South. The informant has described both the accused persons, in the age group of 35 to 40 years, dark in complexion, healthy body, wearing shirt and lungi. One of the accused was having height of 5’ 6”, big eyes and other was having height of 5’3”. Both were talking in Hindi. The informant has further stated that she anyhow reached the village-Haludbani at around 10.00 P.M. She was considered by the villagers as mentally disturbed but after she disclosed them that she along with her brother came to Dimna for outing where the accused persons have looted and assaulted them, the villagers gave her shelter. The informant has further stated that she has informed her father from the telephone of villager. Her father gave a number 9431706481 and asked the informant to contact the Superintendent of Police, Jamshedpur and other Officers and thereafter, the police came and took her in their protection. The informant has stated that initially three accused persons came near the car. The accused who was wearing a yellow banyan has round face was wheatish in color and had curly hair. Other accused was wearing check shirt. The accused persons are wheatish in color, aged about 19-22 years. The informant has claimed that she could identify the accused persons after seeing them as she has seen the face in the moonlight. The informant has further stated that Saurav can also identify the accused, who have come near the vehicle. The occurrence took place between 7.30 P.M. to 9.30 P.M. 3. On the basis of fardbeyan of the informant, police has registered Patamada P.S. Case No. 42 of 2011 dated 15.09.2011 under Sections 376 (2) (g)/ 341/ 323/ 379/427/34 of the Indian Penal Code. 4. During investigation, the police has apprehended one Rahul Kisku @ Dadu who has confessed his guilt before the Officer-in-Charge, S.I. Mukesh Pandey on 16.07.2011 at 7.45 Hrs. near Alkatra factory, Mirzadih. 4. During investigation, the police has apprehended one Rahul Kisku @ Dadu who has confessed his guilt before the Officer-in-Charge, S.I. Mukesh Pandey on 16.07.2011 at 7.45 Hrs. near Alkatra factory, Mirzadih. Rahul Kisku has dissoclesd detailed description with regard to the commission of the offence and has confessed that on 14.07.2011, he along with (i) Jhota Singh @ Gurucharan Singh, son of Bhutka @ Madan Singh, (ii) Sukru Manjhi, son of Thepu Manjhi and (iii) Kannu Barda, son of Chaitanya Barda, all resident of Mirzadih were roaming around football field. They reached near Dimna rest house at Triangular crossing and in the Eastern side, they saw a Santro car standing in which the body light was glowing. The accused Rahul Kisku has confessed that they went near the car and saw a healthy boy sitting on the driving seat and a girl was sitting on the left seat. Both were involved in wrong act and thereafter they asked them to open the door. When the door was not opened, this accused has broken the glass window of driver seat by means of a stone and tried to snatch the key of the vehicle which led to an altercation. The accused has further confessed that he has taken the Nokia mobile kept in the vehicle and the another mobile was taken by Sukru Manjhi (co-accused). The boy got down from the vehicle and started fighting and thereafter this accused Rahul Kisku and Jhota Singh assaulted him. In the meantime, Sukru Manjhi and Kannu (co-accused) lifted the girl from the vehicle, who escaped after a while and fled towards the West. Sukru and Kannu Barda(co-accused) chased her and this accused Rahul and Jhota was chased by the boy who has got down from the vehicle. Both have fled towards the East upto temple. Rahul has further confessed that at around 10.00 P.M. Sukru Manjhi and Kannu Barda came there, from whom on being asked, they disclosed that after chasing the girl for 100 mts. they caught her and took her towards the Sal tree, where Kannu Barda has caught hold of hand and mouth of the girl and Sukru Manjhi has established physical relationship. In the meantime, two security constables came there flashing their torch light and thereafter both the accused fled away leaving their slippers. they caught her and took her towards the Sal tree, where Kannu Barda has caught hold of hand and mouth of the girl and Sukru Manjhi has established physical relationship. In the meantime, two security constables came there flashing their torch light and thereafter both the accused fled away leaving their slippers. The accused has further confessed that after hiding themselves in the bushes they have chased the girl. The girl reached near the Tata Patamada Road where two persons were sitting on a culvert standing their motorcycle and consuming beer. As soon as the victim girl proceeded, both the persons sitting there followed her and near the Dimna lake, she has been dragged towards the bushes and both of them went there and thereafter these accused came to their house. The accused Rahul Kisku has confessed that he has thrown the sim card in the bushes and the mobile is kept at his house which he can produce to them. The other mobile phone which was snatched by Sukru Manjhi can be recovered from his possession. On the basis of the confessional statement of the accused Rahul Kisku, name of other accused persons including Sukru Manjhi @ Manjhi, Kannu Barda, Jhota Singh @ Guru Charan Singh figured in the case with two other persons. 5. Subsequently, police apprehended Sukru Manjhi who has also confessed his guilt before the Patamda Police which was recorded by S.I. M. K. Pandey, Officer in-charge, Patamda Police Station on 16.07.2011 at 12.30 Hours at Gaulidih More. Accused Sukru Manjhi has confessed his guilt and has submitted that on 14.07.2011 he along with (i) Kannu Barda, (ii) Jhota Singh @Gurucharan Singh and (iii) Rahul Kisku were roaming around the football ground and at about 7.30, they reached near the triangular chowk and found a car standing in the East. They went near the car and found one boy and one girl were committing some obscene act upon which Rahul Kisku asked them to open the door as they are doing wrong but when the door was not opened, Rahul Kisku has broken the glass of the door. Thereafter one healthy boy entered into altercation with Rahul and quarrel started. Rahul has taken a mobile phone from the dashboard of the vehicle and this accused Sukru Manjhi has also taken another mobile phone from the same place. The girl was sitting in the car. Thereafter one healthy boy entered into altercation with Rahul and quarrel started. Rahul has taken a mobile phone from the dashboard of the vehicle and this accused Sukru Manjhi has also taken another mobile phone from the same place. The girl was sitting in the car. She started fleeing towards West, thereafter this accused Sukru Manjhi and Kannu Barda chased her. Rahul Kisku and Jhota Singh fled towards the East as they have fought with the boy, who got down from the car and even after being assaulted he was fighting with Rahul Kisku and Jhota Singh. The accused Sukru Manjhi has further stated that after going towards a distance, the girl was caught by him and Kannu Barda and they took the girl towards bushes in the South. The girl under fear, could not make more resistance and thereafter Kannu Barda caught hold of her hand and mouth and this accused Sukru Manjhi has established physical relationship. In the meantime, two security persons came there and thereafter both the accused Sukru and Kannu Barda hid themselves in the bushes. The girl fled away and went towards the road but both of them Sukru and Kannu were following her from the bushes. They saw that on the Patmda road at the culvert one Binod Hansda son of Ranga Hansda and Suresh Tudu son of late Virdhan Tudu of Mirzadih were consuming beer. After seeing the girl proceeding ahead, both of them chased her by motorcycle and as soon as she reached near Dimna lake both of them caught hold of the girl and forcibly took her towards the bushes by dragging her. This accused realised that both will establish relationship with her and thereafter these accused fled away and went to temple where all four assembled and under fear went to their house. After occurrence, police started investigation and in course of raid, this accused alongwith Jhota Singh fled towards Ghatshilla as they got information that Rahul and Kannu Barda have been caught by the police and they will also be apprehended. 6. On the basis of such confession, the police has investigated the matter, held test identification parade of accused and on completion of the investigation submitted final form vide chargesheet no. 6. On the basis of such confession, the police has investigated the matter, held test identification parade of accused and on completion of the investigation submitted final form vide chargesheet no. 63 of 2011 dated 13.10.2011 under sections 376 (2) (g), 341, 323, 379, 427/34 of the Indian Penal Code against Rahul Kisku @ Dadu, Jhota Singh @ Gurucharan Singh, Sukru Manjhi @ Sukru Kisku and Kannu Barda and investigation was kept pending with regard to other two accused persons who are subsequently charge-sheeted vide no. 75 of 2011 dated 30.12.2011 under sections 376(2) (g), 341, 323, 427, 379/34 of the Indian Penal Code i.e. against Suresh Tudu and Binod Hansda. 7. The cognizance of the offence has been taken against accused Rahul Kisku, Jhota Singh @ Gurucharan Singh, Sukru Manjhi @ Kisku and Kannu Barda vide order dated 15.11.2011 and against accused Suresh Tudu and Binod Hansda vide order dated 02.01.2012 and the case has been committed to the court of sessions vide order dated 28.08.2012. During trial accused Sukru Manjhi and Kannu Barda were declared juvenile and as such, their trial has been separated to be tried by Juvenile Justice Board. The trial court has framed the charge against Suresh Tudu, Binod Hansda, Jhota Singh @ Gurucharan Singh and Rahul Kisku @ Dadu on 19.01.2013 under Sections 323/34, 341/34, 379/34, 427/34 and 376 (2) (g) of the Indian Penal Code. The contents of the charge has been explained to the accused persons in Hindi to which they have pleaded not guilty and claimed to be tried. The prosecution, in order to prove its case, has examined altogether nine prosecution witnesses and also exhibited a number of documents up to exhibits-29. Kumar Saurav, eye witness and companion of the informant/victim has been examined as P.W.1. He has proved his signature on the fardbeyan of the victim which has been marked as Exhibit-1. The signature of victim on the fardbeyan has been proved and marked as Exhibit-1/1. Signatures of P.W.1 on all four seizure lists of jeans pant, T-shirt, undergarments, slipper, mobile phone and the bottle of the liquor found at the culvert have been proved and marked as Exhibits-2, 2/1,2/2 and 2/3. The informant/victim has been examined as P.W.2. The signature of victim on the seizure list of some clothes given by her to police has been proved and marked as Exhibit-3. The informant/victim has been examined as P.W.2. The signature of victim on the seizure list of some clothes given by her to police has been proved and marked as Exhibit-3. Manjula Srivastav, Medical Officer posted at M. G. M. Hospital, Jamshedpur, who has examined the victim girl has been examined as P.W.3. She has proved the injury report, which has been marked as Exhibit-4, Dr. has opined that the above finding suggest the possibility of rape and the age of the victim, according to the Radiologist is above 18 years approximately. Dr. Laxman Hansda, Senior Resident Surgeon M. G. M. Medical Collage, Jamshedpur has been examined as P.W.4. He is the Medical Officer, who has examined the sole eye witness, Kumar Saurav and proved the injury report, which has been marked as Exhibit-5, which shows following injuries:- “(i) Abrasion ½ cm x ½ cm over forearm just above wrist on posterior aspect, the colour was reddish. (ii) An abrasion over Rt. Arm on posterior aspect on middle part size ½ cm x ½ cm. The colour of wound is reddish. Time of injuries :- Incidence occurred on 14.07.2011 in the evening as told by the patient. Type of weapon used :- Hard and blunt object. Nature :- Both the injuries are simple in nature.” Permjeet Kumar Srivastawa, advocate being the relative of Kumar Saurav has been examined as P.W.5. He has been informed by Kumar Saurav about the occurrence and thereafter he went to the place of occurrence where entire thing has been disclosed by Saurav. Ram Dulari Devi, mother of the victim, has been examined as P.W.6. She has stated that her daughter has informed her through telephone about the occurrence on 14.07.2011 at 9.30 P.M. Then she made a call on said number but the call was picked up by police officer, as the victim was at the police station. Police officer has asked her to come along with some cloths in the morning. She went to the police station along with the clothes, where she met her daughter. Trishuldhari Pandit, father of the victim has been examined as P.W.7. Police officer has asked her to come along with some cloths in the morning. She went to the police station along with the clothes, where she met her daughter. Trishuldhari Pandit, father of the victim has been examined as P.W.7. He has been informed by the victim on 14.07.2011 at 9.30 P.M. through telephone and thereafter, at 11.30 P.M. a phone call was made asking about whereabouts of his daughter upon which he shows his ignorance and thereafter the police officer has disclosed that his daughter is at the police station and asked him to come with clothes and thereafter this witness went to the police station at 2-2.30 P.M. on 15.07.2011. Navin Kumar Rai, Officer-in-Charge and Investigating Officer of the case, has been examined as P.W.8. This witness has submitted that after transfer of first investigating officer, Mukesh Kumar Pandey, supplementary investigation was handed over to him. From perusal of the case diary, it appears that out of six unknown accused persons in the FIR, four namely, Sukru Manjhi, Kannu Barda, Rahul Kisko and Jhhota Singh have been charge-sheeted vide no.63 of 2011 dated 13.10.2011 and rest two accused namely, Suresh Tudu and Binod Hansda were in Judicial custody. The F.S.L. Report of the material, which were sent for forensic examination before the Forensic Science Laboratory was pending and there was a direction of the Senior Superintendent of Police, Jamshedpur vide 30.12.2011 to submit charge-sheet after receiving material against both the remaining accused persons and thus in compliance of said order, he has submitted charge-sheet on 30.12.2011 against accused, Suresh Tudu and Binod Hansda vide charge-sheet no.75 of 2011 under Sections 376(2) (g), 341, 323,427,379/34 of the Indian Penal Code. Mukesh Kumar Pandey, Officer-in-Charge of Patamda Police Station being the investigating officer, has been examined as P.W.9. This witness has stated that he was on leave on that day but after information about the case, his leave was cancelled and he was asked to join, thereafter he reached village-Haludbani on 14.07.2011 where he met Inspector of Police, Satya Narayan Rajak and other Senior Police Officer and armed force. He was disclosed that Satya Narayan Rajak, Inspector of police has recorded the fardbeyan of the victim on 15.07.2011 at 00.15 hours and the same was forwarded for institution of the case and investigation was handed over to him. He was disclosed that Satya Narayan Rajak, Inspector of police has recorded the fardbeyan of the victim on 15.07.2011 at 00.15 hours and the same was forwarded for institution of the case and investigation was handed over to him. This witness has proved the fardbeyan in the handwriting and signature of Inspector, Satya Narayan Rajak, which has been proved and marked as Exhibit-1/2, forwarding on the fardbeyan in the handwriting of this witness, has been proved and marked as Exhibit-1/3, the endorsement on the fardbeyan in the hand-writing and signature of Sub-Inspector Sita Ram has been proved and marked as Exhibit-1/4. The formal F.I.R. in the handwriting and signature of S.I. Sita Ram has been proved and marked as Exhibit-6. The sketch map of first place of occurrence (with objection) has been marked as exhibit-7, the sketch map of second place of occurrence near triangular junction (with objection) prepared by this witness has been proved and marked as Exhibit-7/1. The seizure list of the slipper under handwriting and signature of this witness has been proved and marked as exhibit-8. The seizure list of two empty bottles of beer (Godfather) prepared in presence of two independent witnesses namely, Kumar Saurav and Ashok Kumar has been proved and marked as Exhibit-9. The sketch map of third place of occurrence where rape has been committed, prepared by this witness has been proved and marked as Exhibit-7/2 (without objection). The production-cum-seizure list of the cloth prepared by the informant in presence of witness, Kumar Saurav and Ashok Kumar has been proved and marked as Exhibit-10. The production-cum-seizure list of the cloth given to the victim by the villagers seized in presence of victim and witnesses Kumar Saurav and Ashok Kumar, has been proved and marked as Exhibit-11. The confessional statement of Rahul Kisku in the handwriting and signature of this witness has been proved and marked as Exhibit-12 and as per the disclosure made by Rahul Kisku, a Nokia Mobile has been seized from his house for which a production list has been prepared in presence of witnesses Chikulu Barda and Birsa Tudu mentioning the name of producer as Rahul Kisku which has been proved and marked as Exhibit-13. The seizure list of another Nokia Mobile recovered from the possession of Sukru Manjhi @ Kisku on the basis of disclosure made by Rahul bearing signatures of witnesses of Chikulu Barda and Birsa Tudu and the accused Sukru Manjhi has been proved and marked as Exhibit-14. The seizure list of track Suit, undergarments of Sukru Manjhi seized in presence of Chikulu Barda and Birsa Tudu and accused Sukru Manjhi bearing their signatures prepared in the handwriting and signature of this witness has been proved and marked as Exhibit-15. The confessional statement of Sukru Manjhi recorded in handwriting and signature of this witness has been proved and marked as exhibit-16. The arrest memo of all four accused persons namely, Kannu Barda, Rahul Kisku, Jhota Singh and Sukuru Manjhi @ Kisku have been prepared in his handwriting and signature, have been proved and marked as Exhibits-17, 18, 19 and 20 respectively. All the four accused were put on Test Identification Parades where they have been identified by the witnesses. The medical report of victim was received and the injury report of Kumar Saurav was also received. The cloth of the victim and Sukru Manjhi seized by the police have been sent for forensic examination before the Forensic Science Laboratory. The accused Binod Hansda and Suresh Tudu have been arrested and their arrest memo was prepared, which have been proved and marked as Exhibits-21 and 22. Both the accused were also put on Test Identification Parade. Finger prints of both the accused were sent for forensic examination before the Forensic Science Laboratory on the basis of order issued by the court, which was taken in presence of the Magistrate. The charge-sheet was submitted against Rahul Kisku, Jhota Singh @ Gurucharn Singh, Sukru Manjhi and Kannu Barda under Sections 376 (2) (g), 341, 323, 379, 427/34 of the Indian Penal Code. The supplementary investigation was kept pending in anticipation of receipt of finger print report from the F.S.L. Subsequently this witness has stated that he has been transferred thereafter and handed over the charge to the Officer-in-Charge, Navin Kumar. This witness has also identified both the accused persons present in the court. This witness has stated during his cross-examination that fardbeyan was recorded at 12.15 hours on 15.07.2011 and the investigation was handed over to him. This witness has also identified both the accused persons present in the court. This witness has stated during his cross-examination that fardbeyan was recorded at 12.15 hours on 15.07.2011 and the investigation was handed over to him. The F.I.R. was instituted against unknown person but this witness has stated that witness Kumar Saurav has disclosed the name of accused persons on the basis of information collected from his own men as Sukru Manjhi, Kannu Barda, Rahul Kisku and Jhota Singh, all resident of Mirzadih who have committed the offence which has been mentioned at para-43 of the case diary. Subsequent thereto police has recorded the confessional statement of accused Rahul Kisku and on the basis of same, certain articles related to the commission of offence has been recovered from possession of Sukru Manjhi @ Kisku. The medical requisition of the victim in connection with Patamda P.S. Case No. 42 of 2011 dated 15.06.2011 in the handwriting of Sub-Inspector, Sita Ram has been proved and marked as Exhibit-A. The Test Identification Parade chart dated 11.10.2011 was initially marked as exhibit-21 in S. T. No. 356 of 2012 on 19.09.2013 but subsequently that has been rectified as Exhibit-25 vide correction dated 12.02.2014 in which the victim has identified Suresh Tudu as the person who has committed rape and when he (accused) saw the light of the vehicle, the victim's mouth was put inside the water and again committed rape. Victim has also identified and disclosed that Suresh (this accused) at that time has taken liquor. The victim has also identified Binod Hansda as the person involved who has committed rape but he was not completely successful. Another Test Identification Parade was held on 19.07.2011 and initially chart was marked as Exhibit-22 in S. T. No. 356 of 2012 on 19.09.2013 but subsequently the same was rectified vide order dated 12.02.2014 as Exhibit-24. During this Test Identification Parade victim and Kumar Saurav have identified Rahul Kisku and (juvenile) Kannu Barda. Victim has identified Rahul Kisku as person standing there at the time when the glass of the driver door was broken. Kumar Saurav (P.W.1) has identified Rahul Kisku as the person, who has broken the glass and assaulted him. Victim (P.W.2) has identified (juvenile) Kannu Barda as the person, who has gagged her mouth and caught hold of her hand at the time of commission of rape. Kumar Saurav (P.W.1) has identified Rahul Kisku as the person, who has broken the glass and assaulted him. Victim (P.W.2) has identified (juvenile) Kannu Barda as the person, who has gagged her mouth and caught hold of her hand at the time of commission of rape. Kumar Saurav (P.W.1) has identified Kannu Barda as the person, who has assaulted him by his hand. The another (third) Test Identification parade also held on 19.07.2011 and chart initially proved and marked as Exhibit-23 in S.T. No. 356 of 2012 on 19.09.2013 has been rectified as Exhibit23 on 12.02.2014. The victim has identified (juvenile) Sukru Manjhi as the person, who has disrobed her from the jeans and undergarments and committed rape with her. Sukru Manjhi has been identified by the witness Kumar Saurav (P.W.1) as the person, who has caught hold victim's hand. Victim (P.W.2) has disclosed that at the time of commission of the rape Jhota Singh was present there and he was keep watch and was vigilant about the surrounding. Kumar Saurav (P.W.1) has identified Jhota Singh as the person, who was standing at a distance from the vehicle where the occurrence of assault took place. The SFSL report first submitted by Director, State Forensic Science Laboratory Jharkhand vide S.F.S.L. Report no. 651 of 2011 dated 31.01.2013 was initially marked as exhibit-26 in S.T. No.356 of 2012 on 19.09.2013 but subsequently has been rectified as Exhibit-28 vide order dated 12.02.2014. As per the report semen has been detected in each of the exhibit marked A and C. As a result of microscopic and immuno chromatographic test semen could not be detected in any of the exhibits marked B and D. No any hair like materials could be found adhering to any of the exhibit marked A,B,C and D. Serological report on origin and group of semen would follow. The another SFSL report first of Director, State Forensic Science Laboratory contained in S.F.S.L. Report No. 651 of 2011 dated 28.02.2013 has initially been proved and marked as Exhibit-27 in S.T. No.356 of 2012 on 19.09.2013but subsequently the same has been rectified as Exhibit-29 vide order dated 12.02.2014. The blood group of panty cuttings and Janghiya cuttings has been proved to be of Human Group 'B'. The serological report second containing S.F.S.L. no. The blood group of panty cuttings and Janghiya cuttings has been proved to be of Human Group 'B'. The serological report second containing S.F.S.L. no. 651 of 2011 dated 28.02.2013 initially marked as exhibit-24 in S. T. No. 356 of 2012 on 19.09.2013, was subsequently rectified as Exhibit-26 vide order dated 12.02.2014. As per this sereological report, the semen has been found on the panty cuttings and (Janghia) cuttings, which has been sent for examination as Exhibits-A and C and are found to be of human blood group-B. The another second S.F.S.L. report submitted by Director, State Forensic Science Laboratory, Jharkhand dated 31.01.2013 initially been proved and marked as Exhibit-25 in S.T. No. 356 of 2012 on 19.09.2013 but subsequently the same was rectified as exhibit-27 vide order dated 12.02.2014. The semen has been detected in each of the exhibit marked A and C. As a result of microscopic and immuno chromatographic test semen could not be detected in any of the exhibit marked B and D. No any hair like material could be found adhering to any of the exhibit marked A, B, C and D. Serological report on the origin and group of semen would follow. 8. After closure of prosecution evidence, statement of accused/appellants have been recorded under Section 313 Cr.P.C. on 23.09.2013, where they have been denied about their involvement in the occurrence but the accused persons have not examined any defence witness or adduced any document in support of their contention of being innocent. 9. After hearing learned counsel for the parties and on the basis of materials available on record, learned trial Court vide impugned judgment of conviction and order of sentence has convicted all the four appellants named above, who were facing trial and co-accused Sukra Manjhi @ Kisku and Kannu Barda Juvenile was tried by Juvenile Justice Board. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence all the four appellants have preferred three separate criminal appeals, which are being heard altogether as these are arising out of common judgment of conviction and order of sentence. 10. Heard, learned amicus curiae Ms. Amrita Banerjee in Cr. Appeal (DB) No. 501/14-Jhota Singh @ Gurucharan Singh @ Jhouta @ Jhota. 10. Heard, learned amicus curiae Ms. Amrita Banerjee in Cr. Appeal (DB) No. 501/14-Jhota Singh @ Gurucharan Singh @ Jhouta @ Jhota. Learned amicus curiae has submitted that the impugned judgment of conviction and order of sentence against the appellant Jhota Singh @ Gurucharan Singh is not sustainable in the eyes of law as Jhota Singh has not been found involved in commission of rape as the victim has identified him in the test identification parade which has been marked as Exhibit-23 as the person who was standing and was watching at the time of commission of rape. Learned amicus curiae has thus submitted that nothing has been recovered from the possession of Jhota Singh and as such, conviction of the appellant Jhota Singh @ Gurucharan Singh under sections 376 (2) (g) and 379/34 is not sustainable in the eyes of law. Learned amicus curiae has submitted that on the basis of wrong information provided by his men to Kumar Saurav (P.W.1), the name of Jhota Singh, Rahul Kisku, Sukru Manjhi @ Kisku and Kannu Barda have been transpired in his case. The source of information to Kumar Saurav (P.W.1) has not been disclosed by the prosecution. The test identification parade has lost its sanctity as the photograph of the accused persons were published in the newspaper and as such, the appellant has been wrongly convicted by learned trial court on the basis of such identification made by Kumar Saurav (P.W. 1) and victim (P.W.2) and as such, impugned judgment of conviction and order of sentence passed against the appellant Jhota Singh is fit to be set aside. 11. Heard, Mr. D.K. Karmakar, learned counsel for the appellant (in Cr. Appeal (DB) No. 17/16-Rahul Kisku @ Dadu). Learned counsel for the appellant has submitted that learned trial court has wrongly convicted the appellant Rahul Kisku @ Dadu on the basis of material adduced by the prosecution though the materials are not free from embellishments, improvements and doubt. Learned counsel for the appellant has submitted that Rahul Kisku has been arrested and under coercion his confessional statement has been recorded by the police and because of recovery of a mobile phone from his possession, he has been made an accused. Learned counsel for the appellant has submitted that Rahul Kisku has been arrested and under coercion his confessional statement has been recorded by the police and because of recovery of a mobile phone from his possession, he has been made an accused. Learned counsel for the appellant has submitted that said mobile has not been proved to be of the victim (P.W.2) as well as her associate Kumar Saurav (P.W.1) and as such, in absence of any legal material against Rahul Kisku he has been wrongly convicted by the learned trial court on the basis of his test identification parade in which the victim has identified him (Exhibit24) as the person standing near the vehicle when its glass was broken. Kumar Saurav (P.W.1) has identified him as the person who has broken the glass of the driver seat of the vehicle and has assaulted him and as such, the conviction of the appellant under sections 376(2)(g) and 379/34 of the Indian Penal Code is not sustainable in the eyes of law. 12. Heard, Mr. M.A. Khan, learned counsel for the appellants (in Cr. Appeal (DB) No. 245 of 2014-Suresh Tudu and Binod Hansda). Learned counsel for the appellants has submitted that the impugned judgment of conviction and order of sentence has been passed by the learned trial court under sections 376(2)(g), 323/34 and 341/34 of the Indian Penal Code against these two appellants though they have been acquitted by the learned trial court under sections 379/34 and 427/34 of the Indian Penal Code. Learned counsel for the appellants has submitted that there is no allegation of any hurt as defined under section 319 I.P.C. so as to convict the appellants under Section 323/34 I.P.C. Learned counsel has further submitted that conviction of the appellants is only on the basis of the test identification parade of the victim dated 11.10.2011 (Exhibit-25) in which the victim has identified Suresh Tudu as the person who has committed rape and subsequently after seeing the vehicle he has pressed the head of the victim inside water and subsequently again committed rape. The victim has also identified Suresh as the person who has taken liquor. The victim has also identified Binod Hansda as the person who has committed rape but he was not completely successful. The victim has also identified Suresh as the person who has taken liquor. The victim has also identified Binod Hansda as the person who has committed rape but he was not completely successful. Learned counsel for the appellants has thus submitted that considering such evidence brought on record as Exhibit-25, the appellants Binod Hansda and Suresh Tudu may be acquitted of the charge under Section 376(2)(g) of the I.P.C. Learned counsel has further submitted that as per the Forensic Science Laboratory report which has been brought on record as Exhibits-26, 27, 28 and 29, the semen belongs to the Human Blood Group 'B'. The prosecution has not proved that these accused appellant have same Blood Group of 'B', so as to convict them under section 376(2)(g) of the I.P.C. Learned counsel for the appellants has thus submitted that since these appellants have no criminal antecedent and on the basis of such evidence, they have been convicted by the learned trial court which is not sustainable in the eyes of law and they deserve to be acquitted from the charge under section 376(2)(g) of the I.P.C. by extending benefit of doubt. 13. Heard, learned counsel for the State, Mr. Pankaj Kumar, Additional Public Prosecutor in all these three criminal appeals. Learned counsel for the State has vehemently argued the case and submitted that it is a heinous crime of rape on a innocent girl when the victim along with her boyfriend who later on became husband were moving in a car in lonely place. These four accused persons namely Jhota Singh @ Gurucharan Singh, Rahul Kisku, Sukru Manjhi @ Kisku and Kannu Barda after seeing them in lonely place started disturbing them with wrong itention and broke the glass of driver door and took the mobile phone. After some scuffle, when Kumar Saurav (P.W.1) chased the accused persons whose mobile phone has been taken and assault was made upon him and taking benefit of situation Sukru Manjhi @ Kisku and Kannu Barda (both juvenile) has forcibly taken the victim inside the bush and committed rape. Learned counsel for the State has submitted that the mobile phone taken by the accused persons have been recovered on the basis of confessional statement of the accused Rahul Kisku (appellant in Cri. Learned counsel for the State has submitted that the mobile phone taken by the accused persons have been recovered on the basis of confessional statement of the accused Rahul Kisku (appellant in Cri. Appeal (DB) No.1 of 2016) from his possession and from possession of Sukru Manjhi @ Kisku (juvenile) and as such, such part of a confession leading to recovery of a fact comes under section 27 of the Indian Evidence Act. As such, the involvement of Rahul Kisku @ Dadu, Jhota Singh and Sukru Manjhi @ Kisku (juvenile) have been established by the prosecution though the trial of Sukru Manjhi @ Kisku has been split up as he was declared juvenile. Learned counsel for the State has submitted that Kannu Barda and Sukru Manjhi @ Kisku (both juvenile) have been identified by the victim as the person, who have committed rape. She has categorically stated while examining as P.W.2 in paragraph-1 of her examination-in-chief that both the accused persons have committed rape one after another. Both the accused persons have been identified by the victim during test identification parade both held on 19.07.2011, which has been proved and marked as Exhibits-23 and 24. The victim has identified Sukru Manjhi @ Kisku as the person who has disrobed her from the jeans and the panty and committed rape with her and Jhota Singh @ Gurucharan Singh has been identified by the victim as the person who was standing and was keeping watch at the time of commission of the occurrence. The victim has identified Kannu Barda in the test identification parade on 19.07.2011 which has been proved and marked as Exhibit-24 as the person who has gagged her mouth and has caught hold of her hand when rape was committed though in the evidence of P.W.2, the victim has categorically stated that for the first occurrence of rape, both the accused persons have forcibly disrobed her cloth and committed wrong things which was subsequently described by the victim in paragraph-5 of her examination-in-chief that wrong thing means Rape. The case of the two juvenile Sukru Manjhi and Kannu Barda were separated to be tried before the Juvenile Justice Board. The present three criminal appeals are related to Jhota Singh @ Gurucharan Singh, Rahul Kisku @ Dadu, Suresh Tudu and Binod Hansda. The case of the two juvenile Sukru Manjhi and Kannu Barda were separated to be tried before the Juvenile Justice Board. The present three criminal appeals are related to Jhota Singh @ Gurucharan Singh, Rahul Kisku @ Dadu, Suresh Tudu and Binod Hansda. Learned State counsel has submitted that there is consistent evidence with regard to the commission of rape by Suresh Tudu and Binod Hansda, though in the test identification parade the victim has stated that rape has been committed by Binod Hansda but he was not fully successful but in her examination-in-chief in paragraph-2 she has categorically stated that both have committed rape one after another. From perusal of the evidence of P.W.2 (victim) particularly in para-2, the victim has stated that when the accused persons namely Sukru Manjhi @ Kisku and Kannu Barda have committed rape against her will, security guard came there and in the meantime one of the accused having danda in his hand also came there. The person who was holding danda as per the evidence is Rahul Kisku and as per evidence of P.W.1 Kumar Saurav, the glass was broken by Rahul Kisku. Thus, from the careful analysis and scrutiny of the evidence of the victim, it appears that Rahul Kisku also had intention of committing rape of the victim and as such, he went to the place where victim was initially raped by Sukru Manjhi and Kannu Barda but because of the timely arrival of the security guard, he could not commit rape upon the victim Gang rape under the Explanation-1 of Section 376 I.P.C. (unamended) reads as follows: “Where a woman is raped by one or more person 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.” 14. Under the aforesaid circumstances, learned counsel for the State has submitted that Rahul Kisku is also liable under section 376 (2)(g) of the I.P.C. Learned counsel for the State has subsequently submitted that from the test identification parade dated 19.07.2011 which has been proved and marked as Exhibit-23, the presence of Jhota Singh at the time of commission of rape of victim has been proved. The victim has categorically stated that while she was raped by other accused persons Jhota Singh was keeping watch over the same, as such, his intention also comes within the purview of explanation-1 of section 376 of the I.P.C. as submitted above with regard to Rahul Kisku. Learned counsel for the State has thus submitted that these accused persons namely Jhota Singh @ Gurucharan Singh, Rahul Kisku @ Dadu, Suresh Tudu and Binod Hansda have been identified by the victim as well as her companion Kumar Saurav in the test identification parade with specific role. As such, conviction of appellants under section 376 I.P.C. in view of the judgment of Dana Yadav @ Dahu & Ors. versus State of Bihar as reported in (2002) 7 SCC 295 at paragraph-38, which is quoted hereunder: “(e) Failure to hold test identification parade does not make the evidence of identification in court inadmissible rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law. (f) In exceptional circumstances only, as discussed above, evidence of identification for the first time in court, without the same being corroborated by previous identification in the test identification parade or any other evidence, can form the basis of conviction. (g) Ordinarily, if an accused is not named in the first information report, his identification by witnesses in court, should not be relied upon, especially when they did not disclose name of the accused before the police, but to this general rule there may be exceptions as enumerated above. 15. Learned counsel for the State has thus submitted that all the four accused persons have committed henious crime with the victim and against the society, the entire society is under threat if such persons are not dealt with, strongly by law. 15. Learned counsel for the State has thus submitted that all the four accused persons have committed henious crime with the victim and against the society, the entire society is under threat if such persons are not dealt with, strongly by law. On these grounds learned counsel for the State has submitted that the appeal preferred by the appellants have no merit and as such, the same may be dismissed as devoid of any merit. The impugned judgment is well founded and well reasoned passed by the learned trial court on the basis of materials available on record and the same does not warrant any interference by this Hon'ble Court. 16. Heard, learned Amicus Curiae Ms. Amrita Banerjee (in Cr. Appeal (DB) No. 501/14), Mr. D.K. Karmakar, learned counsel for the appellant (in Cr. Appeal (DB) No. 17/16) and Mr. M.A. Khan, learned counsel for the appellants (in Cr. Appeal (DB) No. 245 of 2014) and learned counsel for the State Mr. Pankaj Kumar, Additional Public Prosecutor and perused the materials brought on record including the First Information Report, framing of charge, evidence of nine prosecution witnesses, twenty-nine prosecution exhibits, statement of the appellants recorded under Section 313 Cr.P.C., confessional statements of two accused as well as the impugned judgment of conviction and order of sentence. While re-appreciating the case, this Court has scrutinized and analyzed the evidence brought on record minutely. It appears that the prosecution case starts as the victim alongwith her boyfriend Kumar Saurav went in a Santro car at the Triangular junction road near Dimna lake. They were sitting in their car when four persons after seeing these two persons alone have developed common intention to commit the aforesaid offences. They knocked the door of the car to be opened but when the same was not opened, they forcibly broken the glass of the driver's door, picked up the mobile phone and scuffled with Kumar Saurav (P.W.1). The injury report has been brought on record, which has been marked as Exhibit-5. Two of the accused caught the victim when she was fleeing away to protect her life and chastity, took her inside the bushes, forcibly committed rape by disrobing her. The victim has identified both the accused persons as Sukru Manjhi and Kannu Barda (both have been declared juvenile and their cases have been separated to be tried under the Juvenile Justice Board). The victim has identified both the accused persons as Sukru Manjhi and Kannu Barda (both have been declared juvenile and their cases have been separated to be tried under the Juvenile Justice Board). During the act of rape which was going on, third accused having danda also came there but he could not rape her as because at that time two security guards came. Thus, victim was let off. The victim left the place in search of her boyfriend Kumar Saurav (P.W.1) and in the way she crossed a culvert where two persons were sitting having liquor (beer) standing their Enfield motorcycle. The victim crossed them and thereafter those two accused persons have chased her and taken her towards the lake. She was raped by one of the accused who has been identified by the victim as Suresh Tudu. In the meantime some light of vehicle came, the victim was pressed inside the lake and again when the vehicle went away, the victim was raped by Suresh Tudu followed by Binod Hansda. Both the accused Suresh Tudu and Binod Hansda have been identified by the victim in test identification parade dated 11.10.2011 (Exhibit-25) as Suresh Tudu has committed rape, pushed her mouth inside the water and again committed rape and has consumed liquor. Victim has also identified Binod Hansda as the person present there and has committed rape but has stated during test identification parade that he was not completely successful though her evidence brought on record as P.W. 2 suggests that both have committed rape upon her. The presence of Jhota Singh @ Gurucharan Singh has also been proved by the victim in her test identification parade dated 19.07.2011 which has been proved and marked as Exhibit-23 as the person who was keeping vigilant eye at the time of commission of rape. 17. Under the aforesaid circumstances, in view of explanation 1 of section 376 IPC, we are of the opinion that all the four accused persons have rightly been held guilty and convicted by the learned trial court under section 376 (2)(g) of the I.P.C. 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 subsection.” 18. The furtherance of the common intention of the accused persons can be gathered from the evidence on record. Though the trial of Sukru Manjhi and Kannu Barda have been separated for enquiry and they have been held to be juvenile so as to deal their cases under the Juvenile Act by the Juvenile Justice Board but the commission of rape by Suresh Tudu has been proved as per the evidence brought on record by P.W.2 in her evidence as well as corroborated by the medical evidence and identification made in Exhibit-23. So far Sukru Manjhi is concerned and T.I. Parade dated 19.07.2011 (Exhibit-24) where Kannu Barda has been identified as the person who has caught hold of her hand and also gagged her mouth and thereafter the presence of Rahul Kisku @ Dadu has been established in her evidence at paragraph-2 where she has categorically stated that while she was raped by these accused persons. The third person, who was having lathi in his hand came there but at that time security guard came and as such, she was not raped by the third person. The presence of Jhota Singh was also established by the victim in test identification parade dated 19.07.2011 which has been proved and marked as Exhibit-23. The evidence with respect to the accused persons, Suresh Tudu and Binod Hansda has been brought on record by the victim in her evidence at paragraph-2 and medical evidence which has been proved and marked as Exhibit-4 coupled with test identification parade dated 11.10.2011 which has been proved and marked as Exhibit-25. The presence of all these four appellants in commission of rape has been established. So far their conviction as passed by the learned trial court with regard to sections 379/34, 427/34, 323/34 and 341/34, there are ample evidence to suggest that Nokia mobile of Kumar Saurav and the mobile of victim girl have been recovered from the possession of Rahul Kisku and Sukru Manjhi (juvenile) on confession of the accused Rahul Kisku during his custody. The confessional statement of Rahul Kisku has been brought on record as Exhibit-12. The confessional statement of Rahul Kisku has been brought on record as Exhibit-12. The seizure list of the mobile bearing signature of Rahul Kisku has been proved and marked as Exhibit-13 and seizure list of the mobile phone recovered from Sukru Manjhi (juvenile) has been proved and marked as Exhibit-14, as such, the conviction of Rahul Kisku is sustainable in the eyes of law under section 379/34 I.P.C. 19. So far the conviction of all the accused persons under section 323/34 I.P.C. is concerned, the victim (P.W.2) has identified these accused persons. Apart from this Kumar Saurav (P.W.1) has identified the accused persons with whom, he has made quarrel and scuffle, as such, their conviction under section 323/34 IPC is also sustainable. So far conviction of all the appellants under section 341/34 IPC is concerned, since they have taken the victim with common intention for wrongful confinement before commission of the rape and as such they have been rightly convicted by the learned trial court. So far the conviction of the appellant Jhota Singh and Rahul Kisku under section 427/34 IPC is concerned, they have been rightly convicted for causing mischief and damage to the amount of more than Rs. 50/-as the glass window of the driver's door has been damaged and occurrence has been committed where loss of more than Rs. 50/-has been caused. The learned trial court has rightly convicted these two appellants under section 427/34 IPC. 20. To summarise, we do not find any merit in the aforesaid three criminal appeals. 21. In the result, impugned judgment of conviction conviction dated 12.02.2014 and order of sentence dated 14.02.2014, passed by learned Additional Sessions Judge-I F.T.C., East Singhbhum, Jamshedpur, in Sessions Trial No. 232 of 1991, arising out of Patamda P.S. Case No. 42 of 2011, corresponding to G. R. No. 1470 of 2011, is hereby upheld and affirmed. 22. Accordingly all the criminal appeals are hereby dismissed as devoid of any merit. 23. The appellant Jhota Singh is in custody. So far as the appellants Rahul Kisku @ Dadu, Binod Hansda and Suresh Tudu are concerned, they are on bail as submitted by the learned counsel for the appellant. As such, their bail bonds is hereby canceled and they are directed to surrender before the court below so as to serve the rest of sentence. 24. So far as the appellants Rahul Kisku @ Dadu, Binod Hansda and Suresh Tudu are concerned, they are on bail as submitted by the learned counsel for the appellant. As such, their bail bonds is hereby canceled and they are directed to surrender before the court below so as to serve the rest of sentence. 24. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action. 25. Before parting with the judgment, this Court appreciates the assistance rendered by Ms. Amrita Banerjee, learned Amicus Curiae, in disposal of this criminal appeal. 26. The Member Secretary, High Court Legal Services Committee is directed to release the legal admissible remuneration to learned Amicus Curiae, Ms. Amrita Banerjee within a period of four weeks from the date of presenting an application by her along with certified copy of this judgment.