JUDGMENT : 1. The appellants have called into question judgment dated 22.11.2006, passed by learned Sessions Judge, Kupwara, whereby they have been convicted for offences under Section 366 and Section 376(2)(g) of RPC and sentenced to undergo rigorous imprisonment of ten years and a fine of Rs.3,000/ for having committed offence under Section 376(2)(g) of RPC and for rigorous imprisonment of two years for having committed offence under Section 366 RPC. In default of payment of fine, the appellants have been directed to undergo further imprisonment of six moths. 2. Briefly stated, the case of the prosecution is that on 27.02.1989, the prosecutrix accompanied her blind mother for treatment to Handwara hospital and on their return, they went to purchase certain articles from a shop where the appellants were also sitting. The prosecutrix asked the appellants the address of the house of one Ghulam Rasool, Forester, as in the event of the prosecutrix and her mother not getting bus to their destination, they intended to stay in the house of said Ghulam Rasool. One of the appellants introduced himself as brother of said Ghulam Rasool, Forester, whereafter the appellants offered the prosecutrix to take her to the house of Ghulam Rasool, Forester. On this pretext, the appellants led the prosecutrix towards Gogipora in an orchard and took her to a shed over there, where she was repeatedly subjected to forcible sexual intercourse by both the appellants. According to the prosecution case, after committing rape upon the prosecutrix, the appellants fled away and while the prosecutrix was returning to meet her mother who had stayed back in the shop, she met PWs 3 and 4 on her way. She is stated to have narrated the incident to these prosecution witnesses whereafter they took her to the shop at Handwara where her mother was waiting for her. The prosecutrix also narrated the incident to her mother. The report relating to the occurrence was lodged by the prosecutrix on 28th February, 1989 at about 11.00 a.m. and FIR No.26 of 1989 for offences under Section 366/376 RPC was registered with Police Station, Handwara. After investigation of the case, offences under Section 366/376 RPC were found established against the appellants and the charge sheet was laid before the competent court. 3. On 07.06.1990, charges for offences under Section 366 and 376 RPC were framed against the appellants and their pleas were recorded. After investigation of the case, offences under Section 366/376 RPC were found established against the appellants and the charge sheet was laid before the competent court. 3. On 07.06.1990, charges for offences under Section 366 and 376 RPC were framed against the appellants and their pleas were recorded. The appellants denied the charges and claimed to be tried. Accordingly, the prosecution was directed to adduce evidence in support of its case. In order to prove its case, the prosecution examined PW-1, the prosecutrix and PWs-3 and 4 Gulla Mir and Ab. Razak Wani. PW-2, the mother of the prosecutrix could not be examined as during the trial of the case, she passed away. The prosecution witness Shopkeeper Lal Mohammad, on whose shop the prosecutrix and her mother are stated to have purchased certain articles, has not been examined by the prosecution as a witness though his statement under Section 161 of the Cr. P. C has been recorded during the investigation of the case. Similarly, PW-5, Dr. Tejinder Kour, who examined the prosecutrix after the alleged incident and has rendered her medical report stating therein that the prosecutrix has been subjected to sexual assault, has also not been examined as a witness. The Investigating Officer of the case, PW-7, Dilbagh Singh, has also not stepped into the witness box and similarly, PW-6, Dr. Kanwaljeet Singh, who had examined the appellants after the incident, has also not been examined as a witness. 4. After completion of the prosecution evidence, the statements of the appellants under Section 342 of the J&K Cr. P. C were recorded and the incriminating circumstances appearing in the evidence led by the prosecution were put to them to seek their explanation. Both the appellants claimed that the prosecution witnesses have deposed falsehood and that neither the prosecutrix nor other prosecution witnesses are known to them. They have further claimed that they have been implicated under a conspiracy. The appellants entered their defence and examined two witnesses i.e., DWs Ghulam Rasool Ganai and Abdul Khaliq Dar in defence. 5. The learned trial court, after hearing the parties and after appreciating the evidence on record, came to the conclusion that the statement of the prosecutrix as regards the incident is reliable and that the same is corroborated by the statements of PWs 3 and 4, to whom the prosecutrix narrated the incident immediately thereafter. 5. The learned trial court, after hearing the parties and after appreciating the evidence on record, came to the conclusion that the statement of the prosecutrix as regards the incident is reliable and that the same is corroborated by the statements of PWs 3 and 4, to whom the prosecutrix narrated the incident immediately thereafter. The learned trial court also brushed aside the contention of the defence that for withholding material witnesses like doctor and the Investigating Officer, an adverse inference deserves to be drawn against the prosecution. The defence put up by the appellants before the trial court that prior to the incident, some quarrel had taken place between the prosecutrix and the appellants has also been disbelieved by the trial court. 6. The appellants have challenged the impugned judgment of conviction and sentence passed by the learned trial court on the grounds that the prosecution has withheld the material witnesses, inasmuch as neither doctor nor I.O has stepped into the witness box, as such, an adverse inference is to be drawn against the prosecution. It has been further contended that there has been delay in lodging of the FIR which has remained unexplained. It is also contended that no test identification parade of the appellants has been conducted during investigation of the case and because they were unknown to the prosecutrix, as such, without their test identification parade, identity of the culprits has remained doubtful. It has also been contended that the prosecutrix was a grown-up lady and her conduct of accompanying the appellants towards the orchard, where the alleged incident is stated to have taken place, which is located at some distance from Handwara, shows that she has voluntarily accompanied the appellants and has consented to sexual intercourse with them. Lastly, it has been contended that the appellants have not been given opportunity of hearing before imposing sentence upon them and, as such, the whole proceedings are vitiated. 7. I have heard learned counsel for the parties and perused the grounds of appeal, the impugned judgment and the trial court record including the evidence led by the parties before the trial court. 8. 7. I have heard learned counsel for the parties and perused the grounds of appeal, the impugned judgment and the trial court record including the evidence led by the parties before the trial court. 8. As already noted, the charge against the appellants is that they, on the pretext of showing to the prosecutrix the house of Ghulam Rasool, Forester, led her to an orchard where, inside a shed, she was subjected to repeated forcible sexual assaults by the appellants. The occurrence is stated to have taken place on 27.02.1989. The witnesses examined by the prosecution to prove these allegations against the appellants are the prosecutrix and PWs 3 and 4, to whom the prosecutrix is alleged to have narrated the occurrence immediately after the incident. 9. Learned counsel for the respondent-State has vehemently argued that conviction in a rape case can be based upon the solitary statement of a victim and it is not necessary for the Court to look for corroboration of her statement. He has further submitted that in the instant case, besides the statement of the prosecutrix, there are statements of PWs 3 and 4 who have corroborated the statement of the prosecutrix in its material particulars, therefore, the learned trial court has rightly convicted the appellants. 10. Per contra, learned counsel appearing for the appellants has submitted that there are glaring contradictions in the statement of the prosecutrix and that the statements of PWs 3 and 4 cannot be relied upon being hearsay in nature. He has further contended that the fact that prosecution has withheld material witnesses like doctor, I.O and the shopkeeper where mother of the prosecutrix is alleged to have stayed back, would give rise to an adverse inference against the prosecution and as a consequence thereof, statement of the prosecutrix relating to the occurrence cannot be relied upon. 11. The Supreme Court in the case of Ganesan vs. State, (2020) 10 SCC 573 , had an occasion to consider series of judgements of the said Court on the question whether or not conviction on the sole testimony of the prosecutrix can be based. The relevant observations of the Supreme Court are reproduced as under: 10.1. 11. The Supreme Court in the case of Ganesan vs. State, (2020) 10 SCC 573 , had an occasion to consider series of judgements of the said Court on the question whether or not conviction on the sole testimony of the prosecutrix can be based. The relevant observations of the Supreme Court are reproduced as under: 10.1. Whether, in the case involving sexual harassment, molestation, etc., can there be conviction on the sole evidence of the prosecutrix, in Vijay [Vijay v. State of M.P., (2010) 8 SCC 191 : (2010) 3 SCC (Cri) 639] , it is observed in paras 9 to 14 as under: (SCC pp. 195-98) “9. In State of Maharashtra v. Chandraprakash Kewalchand Jain [State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 : 1990 SCC (Cri) 210] this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under: (SCC p. 559, para 16) ‘16. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.’ 10. In State of U.P. v. Pappu [State of U.P. v. Pappu, (2005) 3 SCC 594 : 2005 SCC (Cri) 780] this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under: (SCC p. 597, para 12) ‘12. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.’ 11. In State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 : 1996 SCC (Cri) 316], this Court held that in cases involving sexual harassment, molestation, etc. the court is duty-bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under: (SCC pp. 394-96 & 403, paras 8 & 21) ‘8. … The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. … 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.…Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury.…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. *** 21. … The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.’ (emphasis in original) 12. In State of Orissa v. Thakara Besra [State of Orissa v. Thakara Besra, (2002) 9 SCC 86 : 2003 SCC (Cri) 1080], this Court held that rape is not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. In State of Orissa v. Thakara Besra [State of Orissa v. Thakara Besra, (2002) 9 SCC 86 : 2003 SCC (Cri) 1080], this Court held that rape is not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. 13. In State of H.P. v. Raghubir Singh [State of H.P. v. Raghubir Singh, (1993) 2 SCC 622 : 1993 SCC (Cri) 674] this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix 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. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P. [Wahid Khan v. State of M.P., (2010) 2 SCC 9 : (2010) 1 SCC (Cri) 1208] placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan [Rameshwar v. State of Rajasthan, 1951 SCC 1213 : AIR 1952 SC 54 ]. 14. Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.” 10.2. In Krishan Kumar Malik v. State of Haryana [Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 : (2011) 3 SCC (Cri) 61] , it is observed and held by this Court 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. 10.3. 10.3. Who can be said to be a “sterling witness”, has been dealt with and considered by this Court in Rai Sandeep v. State (NCT of Delhi) [Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21 : (2012) 3 SCC (Cri) 750]. In para 22, it is observed and held as under: (SCC p. 29) “22. In our considered opinion, the “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.” 12. In State (NCT of Delhi) vs. Pankaj Chaudhary, (2019) 11 SCC 575 , the Supreme Court after observing that testimony of the prosecutrix cannot be doubted by court merely on the basis of assumptions and surmises, held as under: 29. It is now well-settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence. [Vishnu v. State of Maharashtra [Vishnu v. State of Maharashtra, (2006) 1 SCC 283 : (2006) 1 SCC (Cri) 217] ]. It is well-settled by a catena of decisions of this Court that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the “probabilities factor” does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. [State of Rajasthan v. N.K. [State of Rajasthan v. N.K., (2000) 5 SCC 30 : 2000 SCC (Cri) 898] ] 13. Again, in Sham Singh vs. State of Haryana, (2018) 18 SCC 35, a similar view was taken by the Supreme Court. Paras 6 and 7 of the said judgment are relevant to the context and the same are reproduced as under: 6. Again, in Sham Singh vs. State of Haryana, (2018) 18 SCC 35, a similar view was taken by the Supreme Court. Paras 6 and 7 of the said judgment are relevant to the context and the same are reproduced as under: 6. We are conscious that the courts shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations or sexual assaults. [See State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 : 1996 SCC (Cri) 316] (SCC p. 403, para 21).] 7. It is also by now well settled that 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 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. (See Ranjit Hazarika v. State of Assam [Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635 : 1998 SCC (Cri) 1725].) 14. From the foregoing analysis of the law on the subject it is clear that conviction can be based on the sole testimony of the prosecutrix if it inspires confidence and no corroboration is required unless there are compelling circumstance for the Court to insist upon corroboration of her statement. It is also clear that minor contradictions or small discrepancies cannot form ground for discarding testimony of a prosecutrix. The only requirement of law is that before placing reliance upon sole testimony of the prosecutrix, the Court should be satisfied that the testimony of the prosecutrix is of sterling nature. 15. The Supreme Court in the case of Rai Sandeep vs. State (NCT of Delhi), (2012) 8 SCC 21 , had an occasion to consider as to who can be said to be a sterling witness. Para 22 of the said judgment is relevant to the context and the same is reproduced as under: 22. In our considered opinion, the “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged. 16. From the above quoted ratio laid down by the Supreme Court, it is clear that before placing reliance upon the statement of a prosecutrix, the Court should satisfy itself that she has withstood the cross-examination of any length, her version of the prosecution and under no circumstances it should give room for any doubt about the occurrence, the person involved and the sequence of events. 17. 17. In the light of the aforesaid position of law, let us now analyze the statement of the prosecutrix. The statement of the prosecutrix was recorded on 11.10.1999 i.e., about ten years after the occurrence. At the time of making her statement, she disclosed her age as 38 years, meaning thereby that at the time of the occurrence, she was a grown-up lady, 28 years of age. She has stated that on the day of the occurrence, when she was unmarried, she along with her blind mother went to Handwara hospital as her mother was unwell. After purchasing medicines etc., they made some purchases from a shop. While they were making purchases from the shop, the mother of the prosecutrix felt some pain. On the same shop the appellants were also present at the relevant time. The prosecutrix further stated that it was getting late and they were apprehending that they may miss the last bus, so her mother asked the appellants to lead them to the house of Forester Ghulam Rasool so that they could spend the night over there. Appellant Lassa Ganai represented himself to be the brother of Forester Ghulam Rasool. The mother of the prosecutrix asked her to accompany the appellants in order to see the house of Forester Ghulam Rasool. The appellants thereafter led the prosecutrix towards an open space near Village Gogipora, whereafter she was taken to a nursery and ultimately into an orchard wherein a shed had been built. At the said place, both the appellants committed sexual assault upon the prosecutrix. In the first instance, appellant Ghulam Mohi-ud-Din Dar committed rape upon her and thereafter he gaged her mouth with pheran in order to prevent her from raising an alarm. Later on, appellant Lassa Ganai also committed rape upon her. After committing the rape, the appellants fled away from the spot. It was raining and the prosecutrix met two persons who were walking over there. She pleaded with them to take her to her mother who was waiting for her on the shop. These two persons took the prosecutrix to her mother and on reaching there, about 2000 persons gathered over there. The prosecutrix went on to state that she went to the police station and these two persons, who had brought her to her mother, also accompanied her to the police station. 18. These two persons took the prosecutrix to her mother and on reaching there, about 2000 persons gathered over there. The prosecutrix went on to state that she went to the police station and these two persons, who had brought her to her mother, also accompanied her to the police station. 18. In her cross-examination, the prosecutrix has stated that prior to the occurrence, she had never seen the appellants and after the occurrence, she saw them for the first time in the court. She stated that during investigation of the case, no test identification parade of the appellants was conducted. She has further stated that people from Handwara told the police about the names of the appellants. She denied the suggestion that she had lodged the report with the police on the second day of the occurrence. She further stated that while she was accompanying the appellants, she suspected some foul play and she told the appellants to take her back to her mother. The place where she had suspicion about the appellants is located about 1/3 kilometer away from the place of the occurrence. The appellants took her to the place of the occurrence through an open space where there was no traffic of people. The appellants made her to believe that they were his brothers and that they would not cause any harm to her. She further stated that she was taken by the appellants through a nallah and not through bridge. She also stated that the report which she gave to the police bears her thumb impression; that when she was subjected to sexual assault, she bleeded through her private part and her condition became pitiable as she was unable to walk properly. She further stated that the appellants proceeded ahead of her after the occurrence and on her way, she met two persons and narrated to them the occurrence. These two persons took her to Handwara after crossing the bridge and during this period the appellants fled away. Her shirt and shalwar were blood-stained and her clothes were seized by the police. She tried to rescue herself from the clutches of the appellants, but she could not manage as the appellants were two in number. She along with her mother was sent to her home by the police in a bus and no one else was travelling in the said bus. She tried to rescue herself from the clutches of the appellants, but she could not manage as the appellants were two in number. She along with her mother was sent to her home by the police in a bus and no one else was travelling in the said bus. Appellant Mohi-ud-din Dar committed rape upon her twice whereas appellant Lassa Ganai committed rape upon her on one occasion. 19. From the narration of aforesaid statement of the prosecutrix, it is clear that she has given vivid details about the manner in which she was taken by the appellants to the place of occurrence on the pretext that she would be taken to the house of Forester Ghulam Rasool. Her statement is consistent on the aspect of the occurrence as well, inasmuch as she has clearly stated that on reaching the shed inside the orchard, she was subjected to forcible sexual intercourse by both the appellants. While appellant Gh. Mohi-ud-din Dar committed rape upon her on two occasions, appellant Lassa Ganai did so on one occasion. 20. Learned counsel for the appellants has submitted that the prosecutrix has admitted that prior to the occurrence, she did not know the appellants and after the occurrence, when her statement was recorded before the Court after about ten years, she had never met the appellants. Taking his argument further, learned counsel has submitted that in the absence of any test identification parade by the prosecutrix, the identity of the culprits has remained doubtful. Therefore, the statement of the prosecutrix cannot be relied upon. In this regard, the learned counsel has relied upon the judgment of Madras High Court in the case of Vadivel and others vs. State of Tamil Nadu (Criminal Appeal Nos.668 of 2015 & 356 of 2016 decided on 31.03.2023). 21. If we have a look at the statement of the prosecutrix in the instant case, she has, while making her statement before the Court, clearly identified the appellants. There was no confusion in the mind of the prosecutrix as regards the identity of the appellants, which is discernible from her statement itself. While pointing towards appellant Lassa Ganai, which has been noted by the trial court, the prosecutrix has stated that the said appellant represented himself to be the brother of Forester Ghulam Rasool. Similarly, while pointing towards appellant Gh. While pointing towards appellant Lassa Ganai, which has been noted by the trial court, the prosecutrix has stated that the said appellant represented himself to be the brother of Forester Ghulam Rasool. Similarly, while pointing towards appellant Gh. Mohi-ud-din, which has been noted by the learned trial court, the prosecutrix has stated that the said appellant committed rape upon her in the first instance. In her cross-examination, she has stated that appellant Lassa Ganai committed rape upon her once whereas appellant Gh. Mohi-ud-Din committed rape upon her on two occasions. She also stated that appellant Gh. Mohi-ud-Din took out his pheran and gaged her mouth to prevent her from raising an alarm. Thus, it is a case where the prosecutrix has clearly identified both the appellants who, according to her, had committed rape upon her. She even stated that at the relevant time, both the appellants were bearded whileas at the time of recording of her statement, they were not having the beard. These minute details about the role of each of the appellants and about their appearance given by the prosecutrix in her statement shows that there was no confusion or doubt in her mind as regards the identity of the culprits. We have also to keep in mind the fact that the occurrence has taken place during daylight and not during the night. The appellants covered a long distance in the company of the prosecutrix from the shop at Handwara to the place of occurrence, therefore, the prosecutrix had full opportunity to identify the appellants. It is not a case where the occurrence has taken place in the dead of night and the accused appeared all of a sudden and committed rape upon the prosecutrix. Therefore, the test identification parade in the instant case for ascertaining the identity of the culprits was not necessary at all. The ratio of the judgment relied upon by learned counsel for the appellants cannot be made applicable to the facts of the instant case. 22. It has been next contended by learned counsel for the appellant that there are contradictions in the statement of the prosecutrix, inasmuch as she has lodged the report with the police on the date of occurrence itself but, as per the material on record, the report has been lodged on 28.02.1989 and not on 27.02.1989, the day of the occurrence. It has been next contended by learned counsel for the appellant that there are contradictions in the statement of the prosecutrix, inasmuch as she has lodged the report with the police on the date of occurrence itself but, as per the material on record, the report has been lodged on 28.02.1989 and not on 27.02.1989, the day of the occurrence. It has also been contended that there is another contradiction in the statement of the prosecutrix, inasmuch as she has stated that she was made to cross the nallah by the appellants through water but at the same time she has deposed in her statement that she has crossed the nallah through bridge. Learned counsel for the appellants has also submitted that the prosecutrix has stated that she has put her thumb impression on the report, but the report does not contain her thumb impression. 23. It is true that the prosecutrix has stated that she went to the police station on the day of occurrence itself along with other two witnesses who met her on her way back to Handwara but the material on record shows that the report has been lodged on the next day i.e., on 28.02.1989. This is a minor contradiction which does not relate to the essential aspects of the case. This minor contradiction does not make the statement of the prosecutrix unreliable. 24. If we have a look at the FIR, which is on the record of the file, it does contain thumb impression of the prosecutrix. So far as the contradiction regarding crossing of nallah is concerned, the same is not borne out from the record. The prosecutrix has clearly stated that when she accompanied the appellants to the place of occurrence, she was made to cross the river but on her way back when she was accompanied by PWs 3 and 4, she crossed the river through bridge. So, this distinction has been clearly made by the prosecutrix in her statement. There is no contradiction in her statement on this aspect of the matter. 25. In view of the foregoing discussion, it is clear that the statement of the prosecutrix as regards the occurrence is consistent and unassailable. There is no cross-examination of the prosecutrix to even remotely show that she had any axe to grind to implicate the appellants. There is no contradiction in her statement on this aspect of the matter. 25. In view of the foregoing discussion, it is clear that the statement of the prosecutrix as regards the occurrence is consistent and unassailable. There is no cross-examination of the prosecutrix to even remotely show that she had any axe to grind to implicate the appellants. Her statement has been consistent right from the starting point to the end and she has withstood the lengthy cross-examination of the learned defence counsel. Her statement does not admit of any doubt as regards the factum of the occurrence, the persons involved and the sequence of it. Therefore, the statement of the prosecutrix in the instant case qualifies to be one of ‘sterling quality’ which deserves to be relied upon. 26. The conviction of the appellants in the face of sterling quality of the statement of the prosecutrix can be sustained only on the solitary statement of the prosecutrix but in the instant case, we have, besides the statement of the prosecutrix, the statements of PWs 3 and 4 as well. Both these witnesses are stated to have met the prosecutrix immediately after the incident and the prosecutrix is stated to have narrated the incident to them. PW-3, Gulla Mir and PW-4 Ab. Razak, have clearly stated that on the day of the occurrence, they were proceeding from Handwara towards Gogipora. They have further stated that they saw the appellants proceeding from Gogipora towards Handwara i.e., in the opposite direction and that both these appellants are known to them. When they proceeded ahead, they saw the prosecutrix proceeding towards Handwara. She enquired about the accused from them, whereafter she narrated to them that these two persons had committed rape upon her. Both these witnesses have stated that the prosecutrix pleaded with them to take her to her mother who was waiting for her at Handwara. These witnesses have stated that because the appellants had gone away, therefore, they did not try to catch them and they took the prosecutrix to Handwara where a number of people gathered on spot. They have further stated that the mother of the prosecutrix was crying and was complaining that her daughter was missing. Both these witnesses, in their cross-examination, admitted that they did not see the occurrence with their own eyes. 27. They have further stated that the mother of the prosecutrix was crying and was complaining that her daughter was missing. Both these witnesses, in their cross-examination, admitted that they did not see the occurrence with their own eyes. 27. While learned counsel for the respondent-State has submitted that the statements of the aforesaid two witnesses are admissible in evidence being res gestae in nature, learned counsel for the appellants has submitted that testimony of these two witnesses is hearsay in nature, therefore, inadmissible in evidence. 28. Before deciding the question as to whether statements of PWs 3 and 4 are admissible in evidence, it would be apt to refer to the provisions contained in Section 6 of the Evidence Act, which provides for admissibility of hearsay evidence if it forms part of the same transaction. It would also be apt to refer to Illustration (a) to the said Section. The provision is quoted as under: 6. Relevancy of facts forming part of same transaction.—Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. Illustrations (a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it has to form part of the transaction, is a relevant fact. 29. From a perusal of the aforesaid provision, it is clear that if the facts are so connected with a fact in issue as to form part of the same transaction, the said facts become relevant, whether the same have occurred at the same time and place or at different time and places. 30. The Supreme Court in the case Gentela Vijayvardhan Rao and another vs. State of Andhra Pradesh, (1996) 6 SCC 41, explained the principle embodied in Section 6 of the Evidence Act in the following manner: 15. The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue “as to form part of the same transaction” becomes relevant by itself. The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue “as to form part of the same transaction” becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae. In R. v. Lillyman [(1896) 2 QB 167 : (1895-99) All ER Rep 586] a statement made by a raped woman after the ravishment was held to be not part of the res gestae on account of some interval of time lapsing between the act of rape and the making of the statement. Privy Council while considering the extent up to which this rule of res gestae can be allowed as an exemption to the inhibition against hearsay evidence, has observed in Teper v. R. [(1952) 2 All ER 447] thus: “The rule that in a criminal trial hearsay evidence is admissible if it forms part of the res gestae is based on the propositions that the human utterance is both a fact and a means of communication and that human action may be so interwoven with words that the significance of the action cannot be understood without the correlative words and the dissociation of the words from the action would impede the discovery of the truth. It is essential that the words sought to be proved by hearsay should be, if not absolutely contemporaneous with the action or event, at least so clearly associated with it that they are part of the thing being done, and so an item or part of the real evidence and not merely a reported statement.” The correct legal position stated above needs no further elucidation. 31. Again, in Krishan Kumar Malik vs. State of Haryana, (2011) 7 SCC 130 , while testing the veracity of the testimony of the prosecutrix that she was subjected to rape, the fact that she had ample opportunity and occasion to disclose to her mother and sister soon after the criminal act, in which case their statements could have lent assurance, was taken into account by the Supreme Court and it was observed as under: 33. As per the FIR lodged by the prosecutrix, she first met her mother Narayani and sister at the bus-stop at Kurukshetra but they have also not been examined, even though their evidence would have been vital as contemplated under Section 6 of the Evidence Act, 1872 (for short “the Act”) as they would have been res gestae witnesses. The purpose of incorporating Section 6 in the Act is to complete the missing links in the chain of evidence of the solitary witness. There is no dispute that she had given full and vivid description of the sequence of events leading to the commission of the alleged offences by the appellant and others upon her. In that narrative, it is amply clear that Bimla Devi and Ritu were stated to be at the scene of alleged abduction. Even though Bimla Devi may have later turned hostile, Ritu could still have been examined, or at the very least, her statement recorded. Likewise, her mother could have been similarly examined regarding the chain of events after the prosecutrix had arrived back at Kurukshetra. Thus, they would have been the best persons to lend support to the prosecution story invoking Section 6 of the Act. *** *** *** 37. Section 6 of the Act has an exception to the general rule whereunder hearsay evidence becomes admissible. Thus, they would have been the best persons to lend support to the prosecution story invoking Section 6 of the Act. *** *** *** 37. Section 6 of the Act has an exception to the general rule whereunder hearsay evidence becomes admissible. But as for bringing such hearsay evidence within the ambit of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there could not be an interval which would allow fabrication. In other words, the statements said to be admitted as forming part of res gestae must have been made contemporaneously with the act or immediately thereafter. Admittedly, the prosecutrix had met her mother Narayani and sister soon after the occurrence, thus, they could have been the best res gestae witnesses, still the prosecution did not think it proper to get their statements recorded. This shows the negligent and casual manner in which the prosecution had conducted the investigation, then the trial. This lacuna has not been explained by the prosecution. The prosecution has not tried to complete this missing link so as to prove it, beyond any shadow of doubt, that it was the appellant who had committed the said offences. 32. Relying upon the aforesaid judgments, the Supreme Court in the case of Dhal Singh Dewangan vs. State of Chhattisgarh, (2016) 16 SCC 701 , observed as under: 24. The general rule of evidence is that hearsay evidence is not admissible. However, Section 6 of the Evidence Act embodies a principle, usually known as the rule of res gestae in English law, as an exception to hearsay rule. The rationale behind this section is the spontaneity and immediacy of the statement in question which rules out any time for concoction. For a statement to be admissible under Section 6, it must be contemporaneous with the acts which constitute the offence or at least immediately thereafter. The key expressions in the section are “… so connected … as to form part of the same transaction”. The statements must be almost contemporaneous as ruled in Krishan Kumar Malik (supra) and there must be no interval between the criminal act and the recording or making of the statement in question as found in Gentela Vijayavardhan Rao’s case (supra). The key expressions in the section are “… so connected … as to form part of the same transaction”. The statements must be almost contemporaneous as ruled in Krishan Kumar Malik (supra) and there must be no interval between the criminal act and the recording or making of the statement in question as found in Gentela Vijayavardhan Rao’s case (supra). In the latter case, it was accepted that the words sought to be proved by hearsay, if not absolutely contemporary with the action or event, at least should be so clearly associated with it that they are part of such action or event. This requirement is apparent from the first illustration below Section 6 which states “whatever was said or done … at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact”. 33. From the foregoing analysis of the case law on the subject, it is clear that in order to make hearsay evidence admissible on the rule of res gestae in terms of Section 6 of the Evidence Act, it has to be shown that the statement was contemporaneous with the acts which constitute the offence or at least immediately thereafter. The facts deposed to must form part of the same transaction and there should be no interval between the criminal act and the recording of the statement in question. 34. Coming to the facts of the instant case, as per the evidence on record, the prosecutrix immediately after being sexually assaulted by the appellants met PWs 3 and 4 while she was proceeding towards Handwara to meet her blind mother. She has clearly stated that she narrated the occurrence to these two witnesses and in turn these two witnesses have confirmed the fact that the prosecutrix narrated occurrence to them and pleaded with them that she should be taken to her mother who is waiting for her at Handwara. The facts deposed to by PWs 3 and 4 are almost contemporaneous and so connected with the incident of rape as to form part of the same transaction. There is no interval between the incident of rape and the narration of incident by the prosecutrix to these two witnesses. The facts deposed to by PWs 3 and 4 are almost contemporaneous and so connected with the incident of rape as to form part of the same transaction. There is no interval between the incident of rape and the narration of incident by the prosecutrix to these two witnesses. Therefore, the testimony of PWs 3 and 4, even if they have not seen the occurrence with their own eyes, is admissible in evidence in view of the rule of res gestae incorporated in Section 6 of the Evidence Act. Their statements not only lend assurance to the statement of the prosecutrix, but they also corroborate the version of occurrence given by her. 35. It has been contended by learned counsel for the appellants that the conduct of the prosecutrix, who was a grown-up lady aged 28 years at the time of the occurrence, showed that she had accompanied the appellants out of her own will and volition, whereafter she had consensual sex with them. The learned counsel has submitted that in somewhat similar circumstances, this Court has, in the case of Shabir Ahmad Malik vs. State of J&K (CrlA(S) No08/2021 decided on 09.03.2022), acquitted the accused. 36. From the statement of the prosecutrix, as has been narrated hereinbefore, it is clear that she has been subjected to forcible sexual assault by the appellants. She has been waylaid by the appellants on the pretext of taking her to the house of Forester Ghulam Rasool. It is not a case where she had accompanied them out of her free will and volition. She has clearly deposed in her statement that both the appellants committed forcible sexual assault upon her and she could not resist it because they were two in number. 37. Section 114-B of the Evidence Act of the Jammu and Kashmir Evidence Act raises a presumption as to absence of consent in certain prosecution for rape. It reads as under: 114-B. Presumption as to absence of consent in certain prosecution for rape.-In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of section 376 of the State Ranbir Penal Code, where sexual intercourse by the accused is proved and the question is whether it was without! the consent of the woman alleged to have been raped and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent. 38. From a perusal of the aforesaid provision, it is clear that once a woman alleged to have been raped states in her evidence before the Court that she did not consent, the Court has necessarily to presume that she did not consent. In the instant case, the prosecutrix has, in no uncertain terms, stated that she was subjected to forcible sexual intercourse by the appellants. Therefore, this Court has to presume that there was no consent on her part to the act of sexual intercourse committed upon her by the appellants. The ratio laid down by this Court in Shabir Ahmad Maliks case (supra) is not applicable to the instant case as the facts of the said case were quite different from the instant case. 39. It has been next contended by learned counsel for the appellants that the prosecution in the instant case has not been able to establish all the circumstances that would go on to prove the guilt of the appellants and unless all the circumstances linking an accused to the crime are proved by cogent and convincing evidence, no conviction can be recorded. In this regard, the learned counsel has relied upon the judgment of Karnataka High Court in the case of State of Mysore vs. V. Sampangiramiah, AIR 1953 Mys. 80, judgment of the High Court of Orissa in the case of Shiva @ Gurucharan Singh vs. State of Odisha (CRLA No.213 of 2023 decided on 05.05.2023) and the judgment of the Supreme Court in the case of Pardeep Kumar vs. State of Chhattisgarh (Criminal Appeal No.1304 of 2018 decided on 16th of March 2023). 40. The contention of learned counsel for the appellants in the above context is without any merit. It is not a case which is based upon circumstantial evidence, but it is a case which is based upon ocular testimony of the prosecutrix. Therefore, the judgments relied upon by learned counsel for the appellants, which relate to the cases pertaining to circumstantial evidence, are not applicable to the facts of the instant case. 41. It is not a case which is based upon circumstantial evidence, but it is a case which is based upon ocular testimony of the prosecutrix. Therefore, the judgments relied upon by learned counsel for the appellants, which relate to the cases pertaining to circumstantial evidence, are not applicable to the facts of the instant case. 41. Next it has been contended by learned counsel for the appellants that the prosecution has withheld material witnesses, as a result of which an adverse inference is required to be drawn against the prosecution. On this ground, it is urged that the impugned judgment of conviction deserves to be set aside. In this regard, learned counsel has submitted that neither the I.O nor the doctor who has examined the prosecutrix have been produced as witnesses. Similarly, the shopkeeper, on whose shop the prosecutrix and her mother had gone to purchase articles, has also not been examined as a witness. Learned counsel has relied upon the judgment of Karnataka High Court in the case of Abbas, Dakshina Kannada vs. The State of Karnataka, 1996 CriLJ 317, judgment of Calcutta High Court in Motilal Chakraborty vs. Dipak Dutta and Ors. 1995 CriLJ 930, and judgement of the Supreme Court in the case of Jodhan vs. State of M.P (Criminal Appeal No.1683 of 2010 decided on 8th April, 2015. 42. The argument of the learned counsel for the appellants that material witnesses have been withheld by the prosecution and on this ground, adverse inference is required to be drawn against it, is without any merit for the reason that in the instant case, the prosecutrix has made a consistent statement relating to the occurrence which has come out unscathed during her cross-examination and her solitary statement is enough to prove the guilt against the appellants. Besides this, the statement of the prosecutrix is corroborated by statements of PWs 3 and 4. In such a situation mere non-examination of Investigating Officer or the doctor who has conducted the examination of the prosecutrix after the occurrence, is immaterial. Similarly, the statement of the shopkeeper is also not material to the outcome of the instant case. 43. In the present case, the prosecutrix, who happened to be an unmarried girl at the relevant time, had no motive to falsely implicate the appellants. Similarly, the statement of the shopkeeper is also not material to the outcome of the instant case. 43. In the present case, the prosecutrix, who happened to be an unmarried girl at the relevant time, had no motive to falsely implicate the appellants. There is no cross-examination of the prosecutrix or even a suggestion from the defence to show that she had any malice towards the appellants or that she had any previous enmity with them. Even PWs 3 and 4, who have corroborated the statement of the prosecutrix, have come unscathed during their cross-examination and no suggestion has been put by the defence to show that they had any motive to falsely implicate the appellants. A feeble attempt has been made by the appellants to show that the prosecutrix had some altercation with them sometime before the occurrence as regards the payment of charges for carrying certain articles to the bus stand. But no such defence has been taken by the appellants in their statements under Section 342 of the J&K Cr. P. C nor any suggestion in this regard has been made by the appellants to the prosecutrix. In fact, the appellants have stated that they do not know either the prosecutrix or the other prosecution witnesses, therefore, their defence that the prosecutrix had any previous enmity with them appears to be an afterthought which cannot be accepted. In the face of these established facts, the non-examination of the I.O and other witnesses by no stretch of imagination can lead to throwing out the case of the prosecution. In this regard I am supported by the Division Bench judgment of this Court in the case of Liaqat Ali vs. UT of J&K & Ors. (Crl A(D) No.5/2021 decided on 02.09.2022). 44. Lastly, it has been argued that the appellants were not heard by the trial court before awarding the sentence against them. On this ground it is urged that the impugned judgment of conviction and sentence deserves to be set aside. Learned counsel has relied upon the judgment of the Supreme Court in the case of Fedrick Cutinha vs. State of Karnataka (Criminal Appeal No.2251 of 2010 decided on April 18th, 2023). 45. On this ground it is urged that the impugned judgment of conviction and sentence deserves to be set aside. Learned counsel has relied upon the judgment of the Supreme Court in the case of Fedrick Cutinha vs. State of Karnataka (Criminal Appeal No.2251 of 2010 decided on April 18th, 2023). 45. It is true that in the instant case the learned trial court has passed the impugned judgment of conviction and sentence on the same day but then a perusal of the impugned judgment reveals that the learned trial court has heard the learned counsel for the parties on the question of sentence. It is recorded in the impugned judgment that learned counsel for the accused and the learned Public Prosecutor were heard to put forward their view points on the question of sentence, whereafter the learned trial court has observed that there are no special or adequate reasons in the present case to award less than minimum sentence against the appellants who have been convicted of offence of gang rape. It has been observed by the learned trial court that there are no extenuating or mitigating circumstances available on record which may justify imposition of sentence less than the prescribed minimum sentence. So, it is not a case where the appellants were not heard on the question of sentence, but it is a case where the judgment of conviction and the order of sentence have been pronounced on the same day. However, the Supreme Court in Fedrick Cutinha’s case (supra), the judgment relied upon by learned counsel for the appellants, has deprecated the practice of passing the judgment of conviction and sentence on the same day. It has been observed that, as a general rule, the trial court is duty bound to adjourn the matter to a future date after recording the conviction so as to call upon both the sides to hear on the question of sentence before sentencing the accused persons. 46. In Allaudin Mian & Others vs State of Bihar (1989) 3 SCC 5 , the Supreme Court, while dealing with the provisions contained in Section 235 of the Cr. P. C, which is in pari materia with Section 276 of the J&K Cr. P. C, observed as under: 10. 46. In Allaudin Mian & Others vs State of Bihar (1989) 3 SCC 5 , the Supreme Court, while dealing with the provisions contained in Section 235 of the Cr. P. C, which is in pari materia with Section 276 of the J&K Cr. P. C, observed as under: 10. Even a casual glance at the provisions of the Penal Code will show that the punishments have been carefully graded corresponding with the gravity of offences; in grave wrongs the punishments prescribed are strict whereas for minor offences leniency is shown. Here again there is considerable room for manoeuvre because the choice of the punishment is left to the discretion of the judge with only the outer limits stated. There are only a few cases where a minimum punishment is prescribed. The question then is what procedure does the judge follow for determining the punishment to be imposed in each case to fit the crime? The choice has to be made after following the procedure set out in sub-section (2) of Section 235 of the Code. That sub-section reads as under: If the accused is convicted, the judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law. The requirement of hearing the accused is intended to satisfy the rule of natural justice. It is a fundamental requirement of fair play that the accused who was hitherto concentrating on the prosecution evidence on the question of guilt should, on being found guilty, be asked if he has anything to say or any evidence to tender on the question of sentence. This is all the more necessary since the courts are generally required to make the choice from a wide range of discretion in the matter of sentencing. To assist the court in determining the correct sentence to be imposed the legislature introduced sub-section (2) to Section 235. The said provision therefore satisfies a dual purpose; it satisfies the rule of natural justice by according to the accused an opportunity of being heard on the question of sentence and at the same time helps the court to choose the sentence to be awarded. The said provision therefore satisfies a dual purpose; it satisfies the rule of natural justice by according to the accused an opportunity of being heard on the question of sentence and at the same time helps the court to choose the sentence to be awarded. Since the provision is intended to give the accused an opportunity to place before the court all the relevant material having a bearing on the question of sentence there can be no doubt that the provision is salutary and must be strictly followed. It is clearly mandatory and should not be treated as a mere formality. Mr Garg was, therefore, justified in making a grievance that the trial court actually treated it as a mere formality as is evident from the fact that it recorded the finding of guilt on 31-3-1987, on the same day before the accused could absorb and overcome the shock of conviction they were asked if they had anything to say on the question of sentence and immediately thereafter the decision imposing the death penalty on the two accused was pronounced. In a case of life or death as stated earlier, the presiding officer must show a high degree of concern for the statutory right of the accused and should not treat it as a mere formality to be crossed before making the choice of sentence. If the choice is made, as in this case, without giving the accused an effective and real opportunity to place his antecedents, social and economic background, mitigating and extenuating circumstances, etc., before the court, the court's decision on the sentence would be vulnerable. We need hardly mention that in many cases a sentencing decision has far more serious consequences on the offender and his family members than in the case of a purely administrative decision; a fortiori, therefore, the principle of fair play must apply with greater vigour in the case of the former than the latter. An administrative decision having civil consequences, if taken without giving a hearing is generally struck down as violative of the rule of natural justice. Likewise, a sentencing decision taken without following the requirements of sub-section (2) of Section 235 of the Code in letter and spirit would also meet a similar fate and may have to be replaced by an appropriate order. Likewise, a sentencing decision taken without following the requirements of sub-section (2) of Section 235 of the Code in letter and spirit would also meet a similar fate and may have to be replaced by an appropriate order. The sentencing court must approach the question seriously and must endeavour to see that all the relevant facts and circumstances bearing on the question of sentence are brought on record. Only after giving due weight to the mitigating as well as the aggravating circumstances placed before it, it must pronounce the sentence. We think as a general rule the trial courts should after recording the conviction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant material bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender. In the present case, as pointed out earlier, we are afraid that the learned trial Judge did not attach sufficient importance to the mandatory requirement of sub-section (2) of Section 235 of the Code. The High Court also had before it only the scanty material placed before the learned Sessions Judge when it confirmed the death penalty. 47. In the aforesaid judgment, the Supreme Court has further held that as long as the spirit and purpose of Section 235(2) of the Cr. P. C is met i.e. accused is afforded a real and effective opportunity to plead his case with respect to sentencing, whether simply by way of oral submission or also by bringing pertinent material on record, there is no bar on pre-sentencing hearing taking place on the same date as the pre-conviction hearing. The Court went on to observe that depending upon the facts and circumstances, a separate date may be required for hearing or sentence, but it is not equally permissible to argue on the question of sentence on the same date if the parties wish to do so. In its conclusion, the Supreme Court held that non-compliance of Section 235(2) Cr. P. C can be rectified at the appellate stage also by providing meaningful opportunity. It has been observed that if such opportunity is not provided by the trial court, the appellate court needs to balance various considerations and either afford an opportunity before itself or remand back to the trial court in appropriate case for fresh consideration. 48. P. C can be rectified at the appellate stage also by providing meaningful opportunity. It has been observed that if such opportunity is not provided by the trial court, the appellate court needs to balance various considerations and either afford an opportunity before itself or remand back to the trial court in appropriate case for fresh consideration. 48. In view of the aforesaid analysis of law on the subject, it is clear that while ideally the trial court, before imposing sentence upon a convict, should postpone the hearing to a future date and upon hearing of the accused and the prosecution, the order of sentence should be passed. But there is no legal bar on the pre-sentencing hearing taking place on the same date as the pre-conviction hearing. It also comes to the fore from the analysis of the law on the subject that non-compliance to pre-sentencing hearing can be rectified even at appellate stage. Therefore, even if it is assumed though not admitted that the appellants were not heard by the trial court before imposing sentence upon them, still then it cannot offer a ground for setting aside their conviction. 49. For what has been discussed hereinbefore, it is clear that the prosecution has been successful in proving that the prosecutrix was waylaid by the appellants on the pretext of taking her to the house of Forester Ghulam Rasool, whereafter she was subjected to repeated forcible sexual assaults by the appellants. Thus, the charge for offence under Section 366 RPC as also charge for the offence under Section 376 (2) (g) RPC stands established against the appellants, for which they have been rightly convicted by the learned trial court. There is no ground to interfere in the impugned judgment passed by the learned trial court so far as it relates to conviction of the appellants for the aforesaid offences. 50. That takes us to the question of sentence. Learned counsel for the appellants has submitted that the occurrence has taken place about 34 years back and at present, the appellants are aged in the range of 62 to 65 years having grown up children and if they are sent to jail, they may have to suffer indignation and displeasure from their nears and dears at this advanced age. Learned counsel for the appellants has submitted that the occurrence has taken place about 34 years back and at present, the appellants are aged in the range of 62 to 65 years having grown up children and if they are sent to jail, they may have to suffer indignation and displeasure from their nears and dears at this advanced age. He has also submitted that even the prosecutrix has by now settled into her family life having her own grown-up children and if the appellants are sent to jail, she may also at this stage not like to divulge the incident to her grown-up children. 51. On the other hand, learned counsel for the respondent-State has submitted that the offence of gang rape carries a minimum punishment of ten years rigorous imprisonment and there are no adequate and special reasons present in the instant case that would warrant award of less than minimum punishment to the appellants. 52. So far as offence under Section 376(2)(g) of the RPC as it stood at the relevant time i.e., in the year 1989, is concerned, it carried minimum punishment of ten years rigorous imprisonment and fine. Proviso to said provision laid down that for adequate and special reasons, punishment lesser than the minimum punishment can be awarded. The expression ‘adequate and special reasons’ indicates that it is not enough to have special reasons nor adequate reasons disjunctively. There should be a conjunction of both for enabling the court to invoke the discretion. 53. In the instant case having regard to the age of the prosecutrix, who was a grown-up lady at the relevant time and considering the fact that the occurrence has taken place some 34 years back and by now the prosecutrix as well as the appellants must have settled in their life, a lenient view of the matter is required to be taken. We have also to take into account the fact that during this long lapse of time, the appellants must have suffered disrepute and mental agony and having regard to the fact that if the appellants are sent to imprisonment for ten years at this advanced age, when they have already become senior citizens, it may not serve the ends of justice. In these circumstances, this Court finds that there are adequate and special reasons attendant to the instant case which persuade this Court to award punishment less than the minimum punishment provided for the offence under Section 376(2)(g) of the RPC to the appellants. 54. Accordingly, while upholding the conviction of the appellants for the offences punishable under Section 366 and 376 of RPC, the order of sentence passed by the learned trial court is modified to the extent that the appellants in proof of the offence under Section 376 (2)(g) of RPC shall undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.10,000/ each. In default of payment of fine, the appellants shall undergo a further imprisonment of similar description for a period of six months. In proof of offence under Section 366 RPC, the sentence awarded by the trial court is maintained. The period during which the appellants have remained in custody during the investigation/trial of the case as also during the pendency of this appeal, shall be set off against the sentence of imprisonment imposed upon them. The appellants are directed to surrender before the trial court within fifteen days from the date of pronouncement of this judgment, failing which the learned trial court shall proceed in the matter in accordance with the provisions contained in Section 425 of the Cr. P. C for execution of the sentence upon the appellants. 55. The trial court record along with a copy of this judgment be sent to the learned trial court.