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2020 DIGILAW 520 (GAU)

Techi Tadam v. State of Arunachal Pradesh

2020-05-21

NANI TAGIA, SONGKHUPCHUNG SERTO

body2020
JUDGMENT : Nani Tagia, J. 1. Heard Mr. Muk Pertin, learned senior counsel appearing on behalf of the appellant and Mr. J. Tsering, learned Public Prosecutor, appearing on behalf of the State of Arunachal Pradesh. 2. This criminal appeal u/s. 374(2) of the Code of Criminal Procedure, 1973, is directed against the judgment & order, dated 20.04.2018, passed in Sessions Case No. 05/2014(YPA) u/ss. 376(D)/376(2)(i)/307/506 of the Indian Penal Code read with Sections 4 & 10 of the POCSO Act (State Vs. Techi Tater & ors.) in Itanagar Women P.S. Case No. 82/2013 by the learned Sessions Judge, Yupia, West Sessions Division, convicting the accused Sri Techi Tater u/s. 376(D) of the IPC and sentencing him to undergo rigorous imprisonment for 20(twenty) years and to pay a fine of Rs. 5,000/-, with default stipulation. 3. The case of the prosecution, briefly stated, is, as under: An FIR dated 16.12.2013 was lodged by the prosecutrix/informant before the Officer-in-charge of the Itanagar Women Police Station, stating, inter alia, that on 15.12.2013, the prosecutrix/informant received a call at around 8 PM from her friend Techi Tater from his Mobile No. 9402254057 asking her to come at Nyokum Lapang Market, Itanagar. When she went there, one of his friends stated to be Nabam, came on a motorcycle and forcefully took her towards Zoo area. Upon arriving at the Zoo area, at around 11 PM, he took her to a small OBT house comprising of 2 rooms where 3 other youths were present. She stated that initially Techi Tater raped her and thereafter, all the other 3 youths had raped her one after another. When the prosecutrix/informant raised objection, Techi Tater held her by her neck and strangulated her but one of the youths who appeared to be a non-tribal, saved her from further assault. She also stated in the FIR that thereafter, the others had beaten the youth who tried to save her and kept her confined in the room and thereafter, discussed amongst themselves, to kill her and dispose of her body, by telling that someone had given Rs. 30,000/- to kill her. They also threatened her with dire consequences if she discussed the matter to police or anybody else. She also disclosed that she did not lodge the FIR earlier as they threatened to kill her. On the basis of the aforesaid FIR, Itanagar Women P.S. Case No. 82/2013 was registered u/ss. 30,000/- to kill her. They also threatened her with dire consequences if she discussed the matter to police or anybody else. She also disclosed that she did not lodge the FIR earlier as they threatened to kill her. On the basis of the aforesaid FIR, Itanagar Women P.S. Case No. 82/2013 was registered u/ss. 376(D)/376(2)(i)/307/506 of the IPC read with Sections 4 & 10 of the POCSO Act. During the course of investigation, the statement of the prosecutrix/informant was recorded under Section 164 of the CrPC, by the learned Judicial Magistrate, 2nd Class, Itanagar Capital Complex; on 19.12.2013. In the statement, the prosecutrix/informant had deposed that on 15.12.2013, she reached her elder sister's place at around 5 PM, at Nyokum Lapang. At around 8 PM, the accused Techi Tater who till that time, was known to the prosecutrix/informant as Tadar, called-up over her phone which was answered by her elder sister. When her sister had answered the phone call, the accused did not talk and disconnected the phone. He again called up and this time, the prosecutrix/informant picked up the phone and this time, the accused told her that there is a fellowship in his house and asked her to come and help him in preparation of tea as his sister was not available at home. The accused then told her that as he is feeling cold, he would be sending his younger brother to pick her up. Then his younger brother, who appeared to be much older, came and picked the prosecutrix/informant and took her to some place towards Zoo road and locked her up in a room where 4(four) other boys were present. They made her to dance with each one of them. When she refused to dance, they had said that she should enjoy it and forced her to dance with each one of them and took video. They also forced her to smile and laugh. Thereafter, they took her to Tadar @ Techi's room and raped her one after another. She tried to escape but she was locked in another room and again, she was raped, one by one. She also heard them discussing and making plans to kill her whereupon, she begged and pleaded them by touching their feet, not to kill her as she has no father and her mother needs her. She tried to escape but she was locked in another room and again, she was raped, one by one. She also heard them discussing and making plans to kill her whereupon, she begged and pleaded them by touching their feet, not to kill her as she has no father and her mother needs her. She also said that she would not complain to police or anyone and therefore, they should not kill her. Thereafter, Tadar @ Techi told her that even if he was arrested, her own brother Tarh Baba would get him out on bail. The prosecutrix/informant further stated that the accused also mentioned about her former boyfriend Sri Gora Take, saying they were relatives. The accused also told her that he was paid Rs. 30,000/- and said even if he is punished, he would be remain in jail for 5 years at most, and he will kill her after he gets out. Thereafter, the accused dropped her on bike near Tempo Station at Ganga. On completion of the investigation, charge sheet was laid and the charge against the accused Techi Tater was framed u/ss. 376(D)/376(2)(i)/307/506 of the IPC read with Sections 4 & 10 of the POCSO Act, by the Court of Sessions, vide order, dated 27.03.2014, and the accused was put to trial along with 3 other accused persons. In order to bring home the charges against the accused Techi Tater, the prosecution examined as many as 6(six) witnesses and the defence also adduced 2(two) witnesses. 4. PW-1 is the prosecutrix/informant; PW-2 is the friend of the prosecutrix; PW-3 is the owner of the house where the offence took place; PW-4 is the Doctor who examined the prosecutrix; PW-5 is the seizure witness and PW-6 is the I.O. of the case. 5. PW-1, the prosecutrix/informant, in her examination-in-chief as well as in her cross-examination, had stated, as under: "I stayed at Nirjuli with my elder sister. She purchased a scooty for me. In the month of December, I repaired my scooty near college, where I met one boy from Yazali along with my elder sister, he suggested to take his elder sister scooty, so he took my phone number. Then in the night, he called me to come at Itanagar. But I did not go to Itanagar. However, in the morning, I called him. Then in the night, he called me to come at Itanagar. But I did not go to Itanagar. However, in the morning, I called him. Then another person picked up the phone saying that the owner is still sleeping. He was Tater boy. I can recognize the said person. She pointed finger towards accused Techi Tater standing on the dock. Since then the accused repeatedly called me. He also gave me lot of calls thereafter. Then during Christmas, I went along with my elder sister. Then the accused called me and asked me to make a tea at his home as his elder sister was not at home. Then I took his promise before I go to him that he will not do anything wrong with me. Thereafter, I went to his house. At about 8 PM in the night, he told me that his brother will drop me. Then that person came and took me to unknown colony at Itanagar near Zoo and he dropped me at one house, where accused A1, A2, A4 and Bamang Taro @ Bharat (juvenile) were present. The fourth person (Bamang Bharat) juvenile is not present in the Court today. They were taking beer. They told that they played a Zanda-Munda(dice) then they asked me to make a tea in that house. Then they played dice. Then I told them that since all of you were boys so I must go. But Tadar(A1) assured me to trust them that they will not do anything. Then I SMS my guardian Higio Tatung, ASM, that I have been cheated and I am in problem with some persons. Then Techi Tater (A1) snatched away my mobile phone and concealed it somewhere. At that time, it was already about 3 AM in the morning. Then they behave abnormal and dragged me inside the room and committed rape on me one after another. There were two rooms in that house. The others were peeping on us when one was committing rape on me. They also physically assaulted on me. First A1 committed rape on me. Second Bamang Bharat @ Taro (juvenile) was the second person committed rape on me. Then thereafter A2 Giogi Rock committed rape on me. Thereafter, I fled from the spot but accused Vij ay Borah caught hold of me. He told me that he will save me. They also physically assaulted on me. First A1 committed rape on me. Second Bamang Bharat @ Taro (juvenile) was the second person committed rape on me. Then thereafter A2 Giogi Rock committed rape on me. Thereafter, I fled from the spot but accused Vij ay Borah caught hold of me. He told me that he will save me. But he (A4) dragged me to his room and committed rape on me. Rape what 1 understand is sexual intercourse and all the above accused persons have committed forceful sexual intercourse with me. During that period, I also begged from them and touch their feet also requesting them not to do such thing with me. Then they planned to kill me saying that I will be problem for them. Then I requested the non tribal one Vijay Borah(A4) to save me and not to kill me. Then later on they themselves fought with each other. Then later on, accused Techi Tater (A1) dropped me up to Ganga. On the way, A1 told me that they committed rape on me as he took some 20-30 thousand from somebody for committing rape on me. He did not clearly tell me who paid him for doing so. Then he also told me that he will hand over me to the CRPF/some Army personnel to do sexual intercourse with me and he will take money in return. He even told me that even if he is arrested for committing rape on me, my own family members will bail him out and the police used to take money for that. After being dropped up to Ganga at about 5-6 AM, I left for my room at Nyokum Lapang, Itanagar. But I did not tell anything about the incident to any members of my family, as I thought if I tell them about the incident they will feel bad about it. When I reached home, my elder sister enquired me from where I was coming. I told her that I came home after celebrating Christmas. She also asked me why my clothes were so dirty. Then she let me take bath and she herself washed my clothes. Then I went back to my room and cried. On being asked, I told my elder sister, as I felt sad so I felt like crying. My elder sister name is Rinu but she must have given different name. Then she let me take bath and she herself washed my clothes. Then I went back to my room and cried. On being asked, I told my elder sister, as I felt sad so I felt like crying. My elder sister name is Rinu but she must have given different name. She is not my real sister. She is my maternal aunty. Then later on, I shared my relatives Higio Tatung about the incident. Then he suggested me to make a police complaint. Then I went to women police station and narrated everything about the incident. I also gave telephone number of Techi Tater (A1) to police madam. She also recorded my statement. I could not tell the place of occurrence as I did not know the location. Then 1 led the police to the location where Vijay Borah (A4) stays. Then A4 was arrested. Thereafter, I was taken to RK Mission Hospital and doctor conducted medical examination over me. Later on, one lady belonged to the accused party called me on my telephone and asked me to get marry with any of the four persons, whomsoever I like most. This fact also I have told to the I/O of the case. On the suggestion of the I/O, I along with police personnel went to the restaurant at Itanagar where that lady called me and but she did not come. On calling her again from hotel, she told me that I have cheated her. Perhaps she have seen me in the restaurant with the police personnel and fled the spot. Later on, all the accused persons were arrested. Later on, police took me to District Jail, Jully, to identify the accused persons, where I identified all the accused persons in front of Magistrate and police. The Magistrate also recorded my statement. After arrest of the accused persons, so many calls came to my telephone, some of them threatening to my life. I told this fact to the I/O madam, she asked me to stay at police station where I stayed for one day. The relatives of the accused, a person from Techi clan also tried to convince me by offering a job also but I did not agree with. I told this fact to the I/O madam, she asked me to stay at police station where I stayed for one day. The relatives of the accused, a person from Techi clan also tried to convince me by offering a job also but I did not agree with. Later on, I also went to that Techi person who was member of ANYA and surrender myself and told them to kill me as I don't want to live anymore, because they were causing lot of trouble to me. I also thought of committing suicide. They also threatened to target my family members but my family member does not know anything about the matter. Now, I don't worry about anything including the punishment of the accused. But I don't want to pursue the case anymore. At the time of incident, my age was 17 years. I know the accused persons standing on the dock, as they are the persons who committed rape on me. One person who also committed rape on me is not present in the court today. P. Ext. -1 is the FIR lodged by me and P. Ext-1(a) is my signature. P. Ext. -2 is the seizure memo of my birth certificate and 2(a) is my signature. P. Ext. -3 is the statement recorded by the magistrate and P. Ext. -3(a) (b) & (c) are my signatures. XXX - My name is HY(for the purpose of concealing the real identity). At the time of incident, I already left my studies. I left school when I was in Class IX. I discontinue my studies in the year 2012. I talked with Techi Tater (A 1) on telephone as he started talking with me and also he belonged to the same district. It is a fact that on 15.12.2013 when I sat on the bike of accused Nabam (juvenile) there was no force applies on me. I sat on his bike as I had a faith on htm. On incident evening, I did not see the time when we reached the spot at unknown colony. It is true that I prepared a tea for them but I myself did not take tea. It is not a fact that I took beer. It is true that the accused persons were dancing after playing music. They forced me to dance but I did not dance with them. It is true that I prepared a tea for them but I myself did not take tea. It is not a fact that I took beer. It is true that the accused persons were dancing after playing music. They forced me to dance but I did not dance with them. They also were taking photographs at that time. It is not a fact a that Tater(A1) dropped me up to Bank Tinali. He dropped me only up to Ganga. Both the statements given before the police as well as the magistrate were correct. I do not remember my exact date of birth. It is true that I ride Scooty purchased by my elder sister(aunty) for me. I don't have any driving license. When one person was committing forceful sexual intercourse with me the others were in another room. I cried and shouted for help but the location was secluded and lonely area, nobody heard me. As they snatched away my mobile phone and I had no any watch I cannot exactly say, what was the time when they committed forceful sexual intercourse with me. It is not a fact that I went along with A4 to sleep with him in the last. But A4 has forcefully dragged me to his room. It is true I am married. I was married at the age of 12 years. The marriage was forceful. I gave birth a child in the year 2010. It is a fact that now I am a divorcee. My husband did not respect and regarded my family and he took my child with him and deserted me. It is a fact that I did not share the fact of the present case with my family members. I am the single child of my father that is why I have no one to share with my problem." 6. PW-2, friend of the prosecutrix/informant, had deposed that the prosecutrix is her friend and she was from the same village. She further deposed that on 25.12.2013, the prosecutrix/informant came to her house but later on, left her house and she does not know what happened to her subsequently. In the cross-examination, the PW-2 had stated that on 15.12.2013, the victim came to her house once but she left the house. It was evening and she did not remember the time. On 16.12.2013, she did not come back to her house. In the cross-examination, the PW-2 had stated that on 15.12.2013, the victim came to her house once but she left the house. It was evening and she did not remember the time. On 16.12.2013, she did not come back to her house. The victim did not tell her anything about the incident on 16.12.2013 so she does not know anything about the case. 7. PW-3, the owner of the house where the offence is alleged to have committed, had deposed that he is the owner of the OBT house located at Chimpu where the alleged occurrence had taken place but he did not know anything about the occurrence on the given night. He had further deposed that later on, he was told that an incident of rape had occurred in his house and he had identified the accused persons on being brought before him by the police who were staying in his OBT house as his tenants. Cross-examination of PW-3 was declined by the defence. 8. PW-4/the Doctor in the R.K. Mission Hospital at Itanagar, who had examined the prosecutrix/informant, deposed that on 16.12.2013, he had examined the prosecutrix/informant upon being requisitioned by the police. The prosecutrix/informant, according to PW-4, was complaining of pain in her abdomen, pain in the genital region and pain in her neck following the assault Upon examination, her general conditions were found to be fair. Blood Pressure and Pulse were normal. Respiratory and Cardiovascular systems, everything, were normal. However, upon examination, the PW-4 found the following external injuries: "i. Bruise of 5 x 2 cm approx. over the right breast above the nipple. ii. Bruise of 1 x 1 cm approx. over the left breast above the nipple. iii. Bruise over right knee measuring 4 x 4 cm. iv. Bruise of around 5 x 6 cm at right thigh. On genital system examination: - Her hymen was absent. - Small superficial laceration of around 1 x 1 cm was found in the posterior vaginal wall. - White discharge was present. - Vaginal Swab was taken and sent for histopathology examination. Thereafter, I advised for emergency contraceptive pill and urine for pregnancy test. Then ultrasound for abdomen was advised." PW-4, the Doctor, in her opinion, stated that injuries on the person of prosecutrix/informant (PW-1) is suggestive of forceful sexual assault. - White discharge was present. - Vaginal Swab was taken and sent for histopathology examination. Thereafter, I advised for emergency contraceptive pill and urine for pregnancy test. Then ultrasound for abdomen was advised." PW-4, the Doctor, in her opinion, stated that injuries on the person of prosecutrix/informant (PW-1) is suggestive of forceful sexual assault. In the cross-examination, PW-4 had stated that age of the victim is written as 17 years as told by the victim girl herself. 9. PW-5, witness to the seizure made by the police, had deposed that she had accompanied the I.O. of the case and went to the place of occurrence. They were led by the prosecutrix/informant to the place of occurrence and she was witness to the seizure made by the I.O. from the place of occurrence. In the cross-examination, PW-5 had stated that the material was seized from the place of occurrence which was a dwelling room of the accused persons. It is true that the materials were not seized from the physical possession of the accused person. She had seen the SIM card being seized from the place of occurrence but she did not see any mobile handset being seized from the accused persons. 10. PW-6, I.O. of the case, had deposed that on the basis of the FIR, dated 16.12.2013 lodged by the prosecutrix/informant/PW-1, the investigation was conducted by him. During the course of investigation, the prosecutrix/PW-1, was examined and the statement recorded. On being led by the victim, the place of occurrence was visited wherein accused Vijay Borah was present and was arrested accordingly. Photographs, rough sketch map, were drawn of the place of occurrence. The victim as well as the arrested accused Vijay Borah were forwarded to Hospital for medical examination. Victim was also forwarded to learned Chief Judicial Magistrate for recording her statement u/s. 164 CrPC. Later on, remaining accused persons, namely Giogi Rock, Techi Tater and Bamang Taro were arrested on having surrendered by them. TIP was conducted except in respect of accused Giogi Rock who was already released on bail and the victim had identified the remaining accused persons. MLC report of victim lady was collected wherein the Doctor had opined that there was a bruise on her knees and there was a sign of forceful sexual intercourse against the victim. On completion of the investigation, charge-sheet was filed against the accused persons. MLC report of victim lady was collected wherein the Doctor had opined that there was a bruise on her knees and there was a sign of forceful sexual intercourse against the victim. On completion of the investigation, charge-sheet was filed against the accused persons. In the cross-examination, PW-6 had stated that it is not a fact that he did not examine and record the statement of PW-2 but only obtained her signature. The victim came to Police Station with her elder sister. The victim knew the accused Techi Tater since one month prior to the incident and she used to contact each other on phone and that he had no knowledge about the earlier boyfriend of the victim. 11. The accused Techi Tater on being examined u/s. 313 of the CrPC, had denied the commission of rape on the prosecutrix/Informant. The accused had also examined 2 witnesses namely Sri Giogi Kame as DW-1 and Gora Take as DW-2. 12. DW-1 had deposed that the accused Techi Tater was his friend and he knew that the accused was friendly with a girl called YA (for the purpose of concealing the real identity). Later on, he came to know that the girl who was introduced to them as YA, had filed a case against the accused Techi Tater and 2 others, by writing her name as HY (for the purpose of concealing the real identity). The DW-1 further deposed that he cannot say whether the accused Sri Techi Tater and 2 others, had committed rape on the prosecutrix/informant, or not. 13. DW-2 had deposed that the prosecutrix was his ex-wife whom he had met in the year 2006 and married her in the year 2008. At the time of marriage, the age of the prosecutrix/informant was about 18-19 years and out of their wedlock, his ex-wife namely the prosecutrix/informant gave birth to a female child on 09.10.2011 at the age of 21 years. In the year 2011, the prosecutrix/informant left him and went away from his life. 14. Mr. Pertin, learned senior counsel appearing on behalf of the appellant, contends that conviction of the accused u/s. 376(D) of the IPC by the learned Sessions Court is grossly illegal and cannot be sustained. In the year 2011, the prosecutrix/informant left him and went away from his life. 14. Mr. Pertin, learned senior counsel appearing on behalf of the appellant, contends that conviction of the accused u/s. 376(D) of the IPC by the learned Sessions Court is grossly illegal and cannot be sustained. The learned senior counsel further submits that the accused Techi Tater does not deny the sexual intercourse with the prosecutrix/informant which, however, was a consensual one and not at all, a forceful sexual intercourse. The learned senior counsel further contends that to sustain a conviction u/s. 376(D) of the IPC, the prosecution must prove that such a forceful sexual intercourse was made by a group of persons with a common intention for committing such an act which is not the case in the present case. 15. Mr. Pertin, learned senior counsel, also contends that conviction being based on the sole testimony of the prosecutrix/informant, cannot be sustained in as much as there were glaring contradictions between the FIR, statement u/s. 164 CrPC of the prosecutrix/informant and the deposition made by the prosecutrix/informant. 16. Mr. Pertin also points out that in the statement u/s. 164 CrPC of the prosecutrix/informant, it was stated that when the prosecutrix/informant had reached the place of occurrence, the accused persons made her to dance which she refused whereas such a fact has not been stated in the deposition of the prosecutrix/informant and accordingly, in view of such a variation in the statements made by the prosecutrix/informant, the statement of the prosecutrix/informant cannot be termed as trustworthy and therefore, relied on, to convict the accused on the basis thereof. 17. In support of the contentions advanced, Mr. Pertin, learned senior counsel, has relied on the following decisions which are quoted hereinbelow along with the relevant paragraphs which were drawn to the attention of this Court: (i). (2016) 10 SCC 506 [Raja & Ors. Vs. State of Karnataka] "26. To start with, the prosecutrix has contradicted herself qua the place of alleged kidnapping. In the complaint she mentioned the spot to be near Richmond Park, whereas in her evidence, she referred to the same as opposite Johnson Market. It is more or less authenticated by the evidence on record that after abduction and on the way to the garage as narrated by her, she did not scream or cry for help. In the complaint she mentioned the spot to be near Richmond Park, whereas in her evidence, she referred to the same as opposite Johnson Market. It is more or less authenticated by the evidence on record that after abduction and on the way to the garage as narrated by her, she did not scream or cry for help. This is of utmost significance as it is not alleged by her that the abductors had put her under fear on the point of any weapon threatening physical injury thereby. This is more so, as admittedly the prosecutrix at the relevant time, was a major and could very well foresee the disastrous consequences to follow. She has admitted in her deposition as well that while she was ravished inside the garage and even during the intermittent breaks, she did not shout for any help. Her version in the complaint with regard to the offending act and the number of persons, who had committed the same, is inconsistent with her testimony on oath at the trial. Notably, in the complaint she mentioned about four persons of whom three raped and out of them, two committed the act twice. She did not disclose in her complaint that the accused persons were known to her from before and disclosed that they during the time had been referring to themselves as Raju, Venu, Parkash and Francis. This, however, has been denied by the investigating officer. On oath, she however introduced a fifth person as well. She accused all the four persons to have committed sexual intercourse with her for the second time. Though grudgingly, as admitted by her, she also consumed the food as offered to her by her molesters." "34. This Court in Raju, while reiterating that the evidence of the prosecutrix in cases of rape, molestation and other physical outrages is to be construed to be that of an injured witness so much so that no corroboration is necessary, ruled that an accused must also be protected against the possibility of false implication. It was underlined that the testimony of the victim in such cases, though commands great weight but the same, cannot necessarily be universally and mechanically accepted to be free in all circumstances from embellishment and exaggeration. It was underlined that the testimony of the victim in such cases, though commands great weight but the same, cannot necessarily be universally and mechanically accepted to be free in all circumstances from embellishment and exaggeration. It was ruled that the presumption of absence of consent of the victim, where sexual intercourse by the accused is proved as contemplated in Section 114-A of the Evidence Act, was extremely restricted in its application compared to the sweep and ambit of the presumption under Sections 113-A and 113-B of the Indian Evidence Act. It was exposited that insofar as the allegation of rape is concerned, the evidence of the prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should always without exception, be taken as gospel truth. The essence of this verdict which has stood the test of time proclaims that though generally the testimony of a victim of rape or nonconsensual physical assault ought to be accepted as true and unblemished, it would still be subject to judicial scrutiny lest a casual, routine and automatic acceptance thereof results in unwarranted conviction of the person charged." (ii). (2008) 15 SCC 133 [Raju & Ors. Vs. State of Madhya Pradesh] "12. Reference has been made in Gurmit Singh case to the amendments in 1983 to Sections 375 and 376 of the Penal Code making the penal provisions relating to rape more stringent, and also to Section 114-A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that Sections 113-A and 113-B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualised as the presumption under Section 114-A is extremely restricted in its applicability. This clearly shows that insofar as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. This clearly shows that insofar as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally, her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined." (iii). (2012) 8 SCC 21 [Rai Sandeep @ Deepu Vs. State (NCT of Delhi)] "32. In the decision in Krishan Kumar Malik v. State of Haryana, in respect of the offence of gang rape under Section 376(2)(g) IPC, it has been held as under in paras 31 and 32: "31. No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, which have already been projected hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the appellant guilty of the said offences. 32. Indeed there are several significant variations in material facts in her Section 164 statement, Section 161 statement (CrPC), FIR and deposition in Court. Thus, it was necessary to get her evidence corroborated independently, with they could have done either by examination of Ritu, her sister or Bimla Devi, who were present in the house at the time of her alleged abduction. The record shows that Bimla Devi though cited as a witness was not examined and later given up by the Public Prosecutor on the ground that she has won over by the appellant." "33. Applying the said principles to the facts of the case on hand, we find that the solitary version of the chief examination of PW4, the prosecutrix cannot be taken as gospel truth for its face value and in the absence of any other supporting evidence, there is no scope to sustain the conviction and sentence imposed on the appellants." (iv). Applying the said principles to the facts of the case on hand, we find that the solitary version of the chief examination of PW4, the prosecutrix cannot be taken as gospel truth for its face value and in the absence of any other supporting evidence, there is no scope to sustain the conviction and sentence imposed on the appellants." (iv). (2007) 1 SCC (Cri.) 41 [Pardeep Kumar Vs. Union Administration, Chandigarh] "13. In the light of the principles enumerated in the above mentioned cases, we have to analyse the factual matrix of the present case with regard to the accused-appellant's conduct and role played by him in the commission of offence. The prosecutrix while lodging the FIR had stated that the accused-appellant reached the spot after the rape had been committed by Lalit Gupta and Ashok Kumar, but in her statement before the Court, she deposed that on reaching House No. 2451, Sector 38-C, Chandigarh, when she did not find the parents of accused Lalit Gupta present in the house, she told accused Lalit Gupta that she would return to her home. She also told him that he had defrauded her. On this, accused Ashok dragged her. inside the house and at the instance of Inderjit Singh, Pardeep Kumar and Karam Chand came to the house. The accused had also brought one person by name Bitu. Accused Karam Chand caught hold of her and raped her and, thereafter Ashok caught hold of her and committed rape against her wish. She stated that Pardeep, Lalit and other person Bitu were taking liquor in the kitchen. If we believe the case of the prosecution that the accused-appellant (Pardeep Kumar) was present at the spot right from the very beginning along with other accused persons. Explanation 1 to Section 376(2) would be attracted as it can be safely inferred that all the accused persons acted in concert with a common intention to commit rape even if all the accused persons have not actually committed rape. But if the statement of the prosecutrix is considered as a whole with the FIR, it appears that the accused appellant entered the house after the rape had been committed on the prosecutrix and thereafter, he was consuming liquor with Lalit Gupta and one Bitu, then his mere presence would not be sufficient to find him guilty taking aid of Explanation 1. Although there has been some probability of the accused-appellant's presence at the place of the commission of offence as he was apprehended from a place nearby the spot of occurrence with the other accused persons, namely, Lalit Gupta and Karam Chand, but mere presence at such place is insufficient to show that there was a prior concert or meeting of minds or plan formed suddenly at the time of commission of offence by the accused-appellant with the other accused persons for the commission of rape on the prosecutrix. The prosecutrix in her earlier version had mentioned that the accused-appellant arrived late at the place of incident and thereafter, he was consuming liquor with the other accused persons in a room. Moreover, where specific acts had been attributed to the other accused persons to show their connivance and preconcert to facilitate the offence in a pre-planned manner, no such act or conduct has been attributed to portray the accused-appellant's role in furtherance of the common intention to commit rape. The prosecutrix in her statement before the court had categorically stated that the accused-appellant had not defiled her and nothing specific was mentioned about his conduct or role to show that he shared the common intention to commit rape. The prosecution did not produce any medical evidence show that he consumed liquor when the accused-appellant was available for such test as he was alleged to have been arrested immediately after the incident at the place of occurrence. The prosecutrix had changed her version from time to time. She began with alleging commission of the offence of rape by all the accused who faced trial, whereas in her deposition before the court, she stated that only Karam Chand and Ashok Kumar had committed rape on her. The statement of the prosecutrix does not inspire confidence to reach to the conclusion that the accused-appellant was present at the place of incident right from the very beginning to infer any preconcert of the appellant with other accused persons to commit rape. In these circumstances, we feel that the accused-appellant is entitled to the benefit of doubt." (v). (2009) 1 SCC(Cri) 564 [Hanuman Prasad & Ors. Vs. State of Rajasthan] "10. The important expression to attract Section 376(2)(g) is "common intention". The essence of the liability in terms of Section 376(2) is the existence of common intention. In these circumstances, we feel that the accused-appellant is entitled to the benefit of doubt." (v). (2009) 1 SCC(Cri) 564 [Hanuman Prasad & Ors. Vs. State of Rajasthan] "10. The important expression to attract Section 376(2)(g) is "common intention". The essence of the liability in terms of Section 376(2) is the existence of common intention. In animating the accused to do the criminal act in furtherance of such intention, the principles of Section 34 IPC have clear application. In order to bring in the concept of common intention, it is to be established that there was simultaneously consensus of the minds of the persons participating in the act to bring about a particular result. Common intention is not the same or similar intention. It presupposes a prior meeting and prearranged plan. In other words, there must be a prior meeting of minds. It is not necessary that preconcert in the sense of a distinct previous plan is necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons which has to be gauged on the facts and circumstances of each case." 18. Mr. Tsering, learned Public Prosecutor, Arunachal Pradesh, on the other hand, submits that conviction for offence of rape, can be based on the sole testimony of the prosecutrix/informant, provided the same is found to be reliable and trustworthy. If the testimony of the prosecutrix/informant is found to be reliable and trustworthy, minor discrepancies in the depositions of the prosecutrix/informant would not be fatal to the prosecution. 19. In the instant case, the deposition made by the prosecutrix/informant is found to be consistent, not impeached by the defence in the cross-examination and therefore, is reliable and trustworthy, which is also corroborated by the evidence of the PW-4, the Doctor, who had found the injury on the person of the prosecutrix/informant, to be fresh injury, suggestive of forceful sexual intercourse. The deposition made by the prosecutrix/informant is also corroborated by the PW-3 who is the house owner who had identified the accused persons on being brought before him by the police, to be his tenants. 20. In support of the submissions advanced, Mr. Tsering, learned Public Prosecutor, Arunachal Pradesh, has relied on the following decisions which are quoted hereinbelow along with the relevant paragraphs which were drawn to the attention of this Court: (i). 20. In support of the submissions advanced, Mr. Tsering, learned Public Prosecutor, Arunachal Pradesh, has relied on the following decisions which are quoted hereinbelow along with the relevant paragraphs which were drawn to the attention of this Court: (i). (1983) 2 SCC 174 [Solanki Chimanbhai Ukabhai Vs. State of Gujarat] "12. In the opinion of the High Court, it would not be proper to discard the testimony of eyewitnesses, if it was otherwise satisfactory, on the simple ground that the medical testimony was in conflict with the testimony of the witnesses, insofar as they depose to the injuries on the deceased having been caused by a spear." "13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby, discredit the eye-witnesses. Unless, however, the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye-witnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence." (ii). (1993) 2 SCC 622 [State of Himachal Pradesh Vs. Raghubir Singh] "5. .................................................... The High Court appears to have embarked upon a course to find some minor contradictions in the oral evidence with a view to disbelieve the prosecution version. In the opinion of the High Court, conviction on the basis of uncorroborated testimony of the prosecutrix was not safe. We cannot agree. There is no legal compulsion to look for corroboration of the evidence before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. In the present case, the evidence of the prosecutrix is found to be reliable and trustworthy. No corroboration was required to be looked for, though enough was available on the record. The medical evidence provided sufficient corroboration. In the present case, the evidence of the prosecutrix is found to be reliable and trustworthy. No corroboration was required to be looked for, though enough was available on the record. The medical evidence provided sufficient corroboration. The High Court, however, while dealing with the medical evidence, observed, as follows: "Lady Doctor Urmil Gupta PW 1, who had examined the prosecutrix, had admitted in so many words towards the end of her cross-examination that the injury found on the private part of the prosecutrix and which is the only injury found in the instant case, could be caused by insertion of a finger by a grown up person like the parents of the prosecutrix. It is true that normally no parents would not(sic) do so but in the peculiar circumstances of this case, this possibility may not be ruled out altogether. In any case, the mere fact that the hymen of the prosecutrix had been found ruptured, would not prove the prosecution version and connect the appellant with the offence charged against him." The above approach to say the least was highly improper. What were the 'peculiar circumstances' of the case from which the learned Single Judge of the High Court thought that the possibility could not be ruled out that the parents of the prosecutrix would have themselves caused injury to the prosecutrix by inserting finger in her vagina rupturing her hymen is not at all understandable. There is no suggestion that on account of any enmity, the parents of the girl would go to that length to falsely implicate the respondent. Dr. Ghatate, the learned senior counsel was also unable to point out any such 'circumstances' from the record which could show that there was any possibility of the hymen of the prosecutrix having been ruptured in the manner suggested by the High Court or any reason to falsely implicate the respondent. In fairness to Dr. Ghatate, it must be recorded that he did not support the observations of the High Court noticed above." (iii). 2016(4) GLT 172 [Sh. Hrangcchawna & Anr. Vs. State of Mizoram) "14. The evidence adduced also shows that all the accused persons including the appellants had taken turns in having sexual intercourse with the prosecutrix. In fairness to Dr. Ghatate, it must be recorded that he did not support the observations of the High Court noticed above." (iii). 2016(4) GLT 172 [Sh. Hrangcchawna & Anr. Vs. State of Mizoram) "14. The evidence adduced also shows that all the accused persons including the appellants had taken turns in having sexual intercourse with the prosecutrix. In view of the fact that the prosecutrix was incapable of giving her consent due to drunkenness, the alleged consent given by the prosecutrix comes within the provision of Clause fifthly of Section 375 IPC. The factum of common intention is apparent in view of the fact that all the accused persons (including the appellants) took turns in having sexual intercourse with the prosecutrix." 21. Rival submissions advanced at the Bar have received due consideration of this Court. The materials available on record have also been perused. 22. On examination of the deposition of the prosecutrix/informant, it is noticed that on 15.12.2013, at about 8 PM, the prosecutrix/informant was picked up by one Sri Bamang Taro @ Bharat (juvenile) from the place of the elder sister at Nyokum Lapang and took her to the place of occurrence which turned out to be a forest corporation area near Itanagar Zoo. When the prosecutrix/informant was brought to the place of occurrence, the accused Techi Tater along with 2 others, namely, Giogi Rock and Vijay Borah, were already there and they were found to be taking beer and playing Zanda Munda. As soon as the prosecutrix/informant was brought there, she was asked to make tea while she was assured by the accused Techi Tater that they would not cause any harm to her. When the prosecutrix/informant wanted to leave the place of occurrence on sensing that all present were boys, and on her inability to leave the place, the prosecutrix/informant sent a SMS to her guardian Sri Higio Tatung. The accused then snatched away her mobile phone and concealed it somewhere. As the night progressed, at about 3 AM in the morning, the accused started behaving abnormally and dragged the prosecutrix/informant inside the room and committed rape on her, one after another. There were 2 rooms in that house and the offence was committed in one of the room. While one was committing the offence, the others were seen peeping from the other room from the hole. They also assaulted the prosecutrix/informant. There were 2 rooms in that house and the offence was committed in one of the room. While one was committing the offence, the others were seen peeping from the other room from the hole. They also assaulted the prosecutrix/informant. The accused Techi Tater has been stated to be the first one to commit rape on her, followed by Bamang Taro @ Bharat (juvenile), Giogi Rock and thereafter, Vijay Borah. After the rape was committed, as above, the accused Techi Tater dropped the prosecutrix/informant at about 5-6 O' clock in the morning at a place called Ganga. The above fact stated by the prosecutrix/informant, have not been impeached during the cross-examination of the prosecutrix by the defence. Apart from the testimony of the prosecutrix/informant having not been impeached by the defence, the medical examination of the prosecutrix/informant conducted on 16.12.2013, the next day by the Doctor(PW-4) at R.K. Mission Hospital at Itanagar; also lends credence to the testimony of the prosecutrix/informant, which had found that the prosecutrix/informant had suffered fresh injury on the person of the prosecutrix/informant which was suggestive of a forceful sexual intercourse committed upon her. 23. Though a contention has been advanced by Mr. Pertin, learned senior counsel, that the testimony of the prosecutrix/informant ought not to be accepted as trustworthy as there were discrepancies in the statement of the prosecutrix/informant u/s. 164 of the CrPC and the deposition made by the prosecutrix/informant in the Court with regard to the fact that in the 164 statement, the prosecutrix/informant had stated that she was forced to dance by the accused which, however, was not stated during the deposition in the Court; and also with regard to the time of occurrence, in the FIR, as 11 PM, and whereas in the deposition made before the trial Court, as 3 AM; we are unable to accept the contention advanced by the learned senior counsel in as much as we find the contradiction pointed-out, to be of minor in nature. Minor contradiction or insignificant discrepancies in the statement of the prosecutrix/informant, should not be a ground for throwing out otherwise a reliable prosecution case. 24. Minor contradiction or insignificant discrepancies in the statement of the prosecutrix/informant, should not be a ground for throwing out otherwise a reliable prosecution case. 24. Accordingly, we find no strong and valid reasons to disbelieve the testimony of the prosecutrix/informant and as such, we are of the view that the accused Techi Tater along with others, had forceful sexual intercourse with the prosecutrix/informant against her will and consent, which amounts to an offence of rape, as defined u/s. 375 IPC. In reaching the above conclusion, we are fortified by a decision of the Hon'ble Supreme Court rendered in State of Punjab Vs. Gurmit Singh & Ors.[ (1996) 2 SCC 384 ], wherein, in paragraph No. 8 thereof, the Hon'ble Supreme Court had held as under: "8. .................................................................. The Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to a great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable..........................." 25. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable..........................." 25. After having held that the accused persons, in this case, have had forceful sexual intercourse with the prosecutrix/informant against her will and consent, and thereby, committed the offence of rape as defined u/s. 375 IPC, what remains to be decided now, is whether the conviction of the accused by the learned Sessions Court for an offence of gang rape, can be sustained or not. It may be pointed out, herein, that conviction of one of the accused persons, namely, Giogi Rock, has been set aside by this Court vide judgment & order, dated 30.05.2019, passed in Criminal Appeal No. 02(AP)2018, on the ground that the prosecutrix/informant, in her cross-examination, by the accused Giogi Rock, had stated that the accused Giogi Rock was not involved in committing the offence of rape on her. 26. Even after the setting aside of the conviction of accused Giogi Rock, the conviction of the accused persons, namely, Techi Tater along with Vijay Borah for the offence of gang rape, as defined u/s. 376(D) of the IPC, stands. 27. Mr. Pertin, learned senior counsel, had tried to impress upon this Court that the accused Techi Tater cannot be convicted for the offence of gang rape in as much there was no any common intention to commit rape on the prosecutrix/informant and in the absence of common intention to commit the offence amongst themselves, the offence of gang rape, cannot be said to be committed. 28. In support of his contention, Mr. Pertin, learned senior counsel, have referred to a decision of the Supreme Court, which have already been noted hereinabove. 29. Section 376 of the IPC which prescribes punishment for the offence of rape including for the offence of gang rape, underwent a series of amendments in the year 2013. 30. Before Section 376 IPC was amended in the year 2013, the punishment for the offence of gang rape, read, as under: "376. Punishment for rape.- (1) xxxxxxxxxx (2) Whoever, xxxxxxxxxxxx (g) commits gang rape, shall be punished with rigorous imprisonment for a terms which shall not be less man 10 years but which may for life and shall also be liable to fine: Provided........ Explanation 1. Punishment for rape.- (1) xxxxxxxxxx (2) Whoever, xxxxxxxxxxxx (g) commits gang rape, shall be punished with rigorous imprisonment for a terms which shall not be less man 10 years but which may for life and shall also be liable to fine: Provided........ 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." 31. To bring the offence of rape within the purview of Section 376(2)(g) IPC, read with Explanation 1 to this section, it was necessary for the prosecution 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 concert 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. On proof of common intention of the group of persons which would be more than one, to commit the offence of rape, actual act of rape by even one individual forming group, would fasten the guilt on other members of the group, although he or they have not committed rape on the victim or victims. 32. After section 376 IPC was amended in the year 2013, which came into effect from 03.02.2013, the punishment for gang rape have been provided u/s. 376(D) which reads, as under: "376(D). 32. After section 376 IPC was amended in the year 2013, which came into effect from 03.02.2013, the punishment for gang rape have been provided u/s. 376(D) which reads, as under: "376(D). Where a woman is raped by one or more persons constituting a group or acting in furtherance of common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years but which may extend to life, which shall mean imprisonment for the remainder of that person's natural life, and with fine. Provided that such fine shall be just and reasonable to meet the medical expenses rehabilitation of the victim. Provided further that any fine imposed under this section shall be paid to the victim." 33. From reading of Section 376(D) IPC, it is noticed that where a woman is raped by one or more persons constituting a group or acting in furtherance of common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years but which may extend to life, which shall mean imprisonment for the remainder of that person's natural life, and with fine. 34. Thus, it would be seen that Section 376 (D) of the IPC, constitutes of 2 parts:- (i) if a woman is raped by one or more persons constituting a group, and (ii) if a woman is raped by one or more persons acting in furtherance of common intention. 35. The word "or" used in the Section is disjunctive and if one or more persons constituting a group commits rape on a woman, would be construed as gang rape, without the necessity to prove as to whether there was any common intention to commit rape, or not. The other part being where a woman is raped by one or more persons, acting in furtherance of common intention. 36. The other part being where a woman is raped by one or more persons, acting in furtherance of common intention. 36. In that view of the matter, having accepted the testimony of the prosecutrix/informant, as reliable and trustworthy, and on the basis thereof, having held that the accused Techi Tater had committed rape on the prosecutrix/informant along with other accused namely Vijay Borah and Bamang Taro @ Bharat (juvenile), we are of the view that the accused Techi Tater is liable to be convicted under the first part of Section 376(D) of the IPC, without the further necessity of proving whether the accused persons had common intention to commit rape on the prosecutrix/informant. 37. That apart, even if the factum of common intention is required to be proved; in the instant case, it is noticed that on the night of occurrence, when the PW-1/prosecutrix/informant was brought to the place of occurrence by the accused Bamang Taro @ Bharat(juvenile), all the accused persons, namely, Techi Tater, Giogi Rock(since acquitted) and Vijay Borah were already present in the place of occurrence and accordingly; we are of the considered view that the factum of common intention would be apparent because of the fact that all the accused persons who were present at the same place, at the same time, took turns in committing rape on the prosecutrix/informant. 38. For the reasons and discussions made hereinabove, we do not find any infirmity with the judgment & order, dated 20.04.2018, passed in Sessions Case No. 05/2014(YPA) u/ss. 376(D)/376(2) (i)/307/506 IPC read with Sections 4 & 10 of the POCSO Act, in Itanagar Women P.S. Case No. 82/2013, by the learned Sessions Judge, Yupia, West Sessions Division, in so far it convicts the accused Techi Tater u/s. 376(D) IPC; and accordingly, the judgment & order, dated 20.04.2018, is hereby uphold. 39. Resultantly, the instant criminal appeal stands dismissed being devoid of merit.