JUDGMENT : 1. Present Criminal Appeal under section 374(2) Cr.P.C. has been filed against the Judgment and Order dated 22.10.1994 passed by Jagdish Prasad, Special/Additional Sessions Judge, Lakhimpur Kheri in Sessions Trial No.73 of 1990 (State Vs. Debi Dayal and 3 others) arising out of Case Crime No.170 of 1989, under Sections 394, 397, 366 and 376 I.P.C., Police Station Mitauli, District Lakhimpur Kheri convicting the appellants, under Sections 376/366 I.P.C. and sentencing them to undergo rigourous imprionsment of ten years under Section 376 I.P.C. and further sentencing them to undergo rigourous imprisonment of five years under Section 366 I.P.C. Both the punishment are directed to run concurrently. 2. In the guidelines of the Hon’ble Supreme Court, the name of the victim is not disclosed. Her name is referred as letter ‘X’. 3. Wrapping the facts of the case in brief, at about 12:00 p.m. i.e. in the midnight of 10/11.06.1989 the informant Buddha Chamar alongwith his wife, his daughters namely; Goda and victim ‘X’ and his son Ram Prasad was sleeping in the courtyard of his old house and wingnut (dibari) was kept blown, four persons armed with gun and country made pistol entered in the house and took away his daughter victim ‘X’ aged about 18 years. On the hue and cry by her daughter i.e. victim ‘X’, his wife, his daughter Goda and son awoke and saw the accused persons namely Devi Dayal, Arjun Pasi, Ambika Pasi and Fareed Khan were kidnapping his daughter Victim ‘X’ was being taken by Devi Dayal and Ambika Pasi on the gun point, and accused Arjun Pasi and Fareed Khan robbed the nose ring, sutiya and anklet of his wife and daughter Goda and other household items containing clothes and Rs.1,000/-. When they raised alarm and villagers gathered, accused took to their heels. He tried to search out his elder daughter victim ‘X’, who came after about one an hour from the eastern side of village by crossing the river in wet clothes. She narrated the whole story that all the four persons carried her across the Pirai river and raped her one by one against her will in the bushes and after committing rape upon her all of them fled away. 4. She narrated the whole story that all the four persons carried her across the Pirai river and raped her one by one against her will in the bushes and after committing rape upon her all of them fled away. 4. On the basis of written report, F.I.R. was lodged on 11.06.1989 and was registered as Case Crime No.170 of 1989, under Sections 394, 397, 366 and 376 I.P.C., Police Station Mitauli, District Lakhimpur Kheri. The case was entrusted for investigation to S.I. Devideen Singh, who recorded the statement of victim ‘X’ under Section 161 Cr.P.C. and she was medically examined by P.W.-7 Dr. Indra Chopra on 11.06.1989 at about 5:15 p.m. Doctor did not find any mark of injury on her private parts, left abdomen or thigh. On her internal examination, hymen was found old torn. Investigating Officer visited the house of complainant and interrogated complainant and visited the spot where the rape was committed and after spot inspection, prepared site plan as Ext. Ka-2, recovered wingnut (Dibari) and prepared its recovery memo and proved it as Ext. Ka-4. I.O. took the petticoat of the victim ‘X’, and prepared its recovery memo proved it as Ext. Ka-5. Arrested accused Arjun Pasi and Fareed Khan on 13.06.1989. After collecting sufficient evidence submitted the charge-sheet Ext. Ka-6 dated 23.06.1989 against all the accused persons under Sections 394 and 376 I.P.C. 5. Accused appeared before trial court and charges were framed and read over to the accused appellants under Sections 394/376 I.P.C. Accused appellants denied all the charges and claimed to be tried. 6. In order to prove the case, prosecution examined P.W.-1 Victim ‘X’, who narrated whole the story. P.W.-2 Ram Prasad, the brother of the prosecutrix, P.W.-3 Buddha, complainant, who proved written report as Ext. Ka-1 and P.W.-4 Smt. Laxmi W/o the complainant, who corroborated the factum of robbery and abduction of victim ‘X’ by the accused persons. P.W.-5 S.I., Devideen Singh, who investigated the case and proved site plans as Ext. Ka-2 and Ext. Ka-3, memo of Dibari as Ext Ka-4, memo for taking Petticoat as Ext. Ka5 and the charge-sheet as Ext. Ka-6. P.W.-6 Head Constable Shiv Mangal Singh, who prepared chik report on the basis of written report and proved the same as Ext. Ka-7 and registered the case vide entry in G.D. No.12 as Ext. Ka-8. Ka-2 and Ext. Ka-3, memo of Dibari as Ext Ka-4, memo for taking Petticoat as Ext. Ka5 and the charge-sheet as Ext. Ka-6. P.W.-6 Head Constable Shiv Mangal Singh, who prepared chik report on the basis of written report and proved the same as Ext. Ka-7 and registered the case vide entry in G.D. No.12 as Ext. Ka-8. He has further stated that he sent victim ‘X’ for medical examination alongwith Constable Balak Ram. P.W.-7 Dr. Indra Chopra, who medically examined the victim ‘X’ proved the medical report as Ext. Ka-9. 7. After conclusion of the prosecution evidence, the statements of accused-appellants were recorded under Section 313 Cr.P.C. All the accused denied the prosecution allegations and stated that they have been falsely implicated in the present case due to animosity. Accused Devi Dayal has stated that there was enmity between his family and the family of Buddha regarding the house and tree. It is also stated that complainant wanted to marry his daughter victim ‘X’ with him but he refused because the victim ‘X’ was not of a good character, therefore, he has been falsely implicated in the present case. Accused Arjun Pasi has stated that on the day of alleged incident he was busy in the marriage of his own daughter. Accused Ambika Pasi has stated that on the day of incident he was in the marriage of the daughter of the accused Arjun Pasi. He is nephew of co-accused Arjun Pasi. 8. Accused were provided the opportunity to adduce defence witness and they produced the defence witnesses, which are as follows:- • D.W.-1 Rashid. • D.W.-2 Ram Dayal. • D.W.-3 Ram Kishun. 9. D.W.-1 Rashid stated that Fareed Khan was in his house to attend the marriage of his niece Parveen in the mid night of 10/11.06.1989 from 10:00 p.m. onwards. 10. D.W.-2 Ram Dayal has stated that his house was adjacent to the house of the complainant Buddha who wanted to grab the plot of accused Devi Dayal and he further stated that the complainant wanted to marry his daughter victim ‘X’ with Devi Dayal and he (Devi Dayal) refused to marry her because of her bad name, therefore, Devi Dayal has been falsely implicated in the present case. 11. 11. D.W.-3 Ram Kishun has stated that about five years back in the month of Jeth, Saptami on Saturday he went to attend the marriage of the daughter of accused Arjun Pasi and Arjun Pasi and Ambika Pasi remained there whole the night. 12. On the basis of evidence adduced in the court, learned trial court reached to the conclusion that nothing has been recovered from the possession of the accused-appellants, therefore, the theory of commission of robbery is not reliable. While appreciating the defence evidence, learned trial court held that Fareed Khan had failed to establish the plea of alibi as stated under Section 313 Cr.P.C. Learned trial court further held that the theory of Devi Dayal that he was falsely implicated because the complainant wanted to marry his daughter victim ‘X’ with Devi Dayal and he refused to marry with her daughter victim ‘X’ is not reliable, hence the statement of D.W.-2 Ram Dayal is not helpful to save the accused Devi Dayal. Evidence of D.W.-3 Ram Kishun is also not relied upon by the trial court and it is found that prosecution has successfully established the guilt of the accused-appellants for charges levelled against them under Sections 366 and 376 I.P.C. Thus, learned trial court passed the order of conviction under Sections 366 and 376 I.P.C. and acquitted of the accused-appellants from the charges under Sections 394 and 397 I.P.C. 13. Being aggrieved with the judgment and order dated 22.10.1994, convicted appellants has approached this Court by way of filing the present appeal. 14. Heard Shri Santosh Kumar Kannaujia, learned counsel for the appellants, Shri Manish Kumar Pandey, learned A.G.A.-I for the State-respondent and perused the material available on record. 15. It is submitted by learned counsel for the appellants that the judgment and order passed by the learned court below is against the evidence on record. The prosecution version is not corroborated by the medical evidence. The entire prosecution story is appeared to be highly improbable and unnatural, as the victim ‘X’ has stated that after the gang rape by four persons, she returned herself again by crossing the river. It is also submitted that the punishment is too severe, therefore, the judgment and order of learned trial court is liable to be set aside. 16. The entire prosecution story is appeared to be highly improbable and unnatural, as the victim ‘X’ has stated that after the gang rape by four persons, she returned herself again by crossing the river. It is also submitted that the punishment is too severe, therefore, the judgment and order of learned trial court is liable to be set aside. 16. On the contrary, learned A.G.A.-I for the State has vehemently opposed the above mentioned averments by submitting that prosecution has proved its case beyond reasonable doubt with cogent evidence. All the accused appellants were identified by witnesses in the light of wingnut (dibari), which was putting up at the time of occurrence. Medical evidence corroborated the offence under Section 376 I.P.C., therefore, the judgment and order of learned trial court is liable to upheld. 17. At the very outset, it is pertinent to mention here that the appeal against accused-appellant no.4 Fareed Khan, who is said to have been died on 06.09.2018 is dismissed as abated vide order dated 24.11.2022. 18. Before reaching to any conclusion, the evidence of witness is to be looked into. 19. P.W.-1 Victim ‘X’ has stated that accused Devi Dayal resides in her village. Accused Arjun Pasi and Ambika Pasi were residing in the village Manhan. Accused Fareed Mistri resides in Miatauli. In the night of incident, when she was sleeping on the cot alongwith her sister Goda in courtyard and her mother was sleeping on the another cot in the courtyard and other family members were sleeping on the mat and her father was sleeping outside the gate of house, accused-appellants Devi Dayal, Arjun Pasi, Ambika Pasi and Fareed Mistri entered in their house and kidnapped her forcefully. Devi Dayal and Ambika Pasi was armed with gun, Arjun Pasi was armed with half-bore gun and Fareed Mistri armed with country made pistol. Devi Dayal and Ambika Pasi took her across the Pirai river and throw her under the tree of Dhak (Palash) and Khajuriya and committed rape upon her one by one by all the four accused-appellants. When they went away, she came back to her house on her own by crossing the river. Accused-appellants have robbed the batua, jewellery, sutiya, nose ring, Rs.1000/-and other household items. 20. When they went away, she came back to her house on her own by crossing the river. Accused-appellants have robbed the batua, jewellery, sutiya, nose ring, Rs.1000/-and other household items. 20. P.W.-2 Ramprasad has stated on oath that on the night of incident both of his sisters Goda and victim ‘X’ were sleeping on the cot in the courtyard. He was also sleeping on the another cot nearby. His father was sleeping in the room of colony and the dibari was lightening on the door step, when the accused-appellants entered the house and accused Devi Dayal and Ambika Pasi abducted his sister victim ‘X’ and accused Fareed and Arjun Pasi carried the household goods and jewellery and cash, and the accused Devi Dayal and Ambika Pasi armed with gun, Arjun Pasi armed with half-bore gun and Fareed was armed with country made pistol went towards the east of the village. Her sister victim ‘X’ returned after an hour and narrated the whole story to him. 21. P.W.-3 Buddha, who is complainant of the case has corroborated the statements of P.W.-1 and P.W.-2. 22. P.W.-4 Laxmi, who is mother of victim ‘X’ corroborated the prosecution version and the statements of P.W.-1, P.W.-2 and P.W.-3. She has also stated that she recognized all the accused in the light of dibari and on the hue and cry, villagers Suraj, Badlu, Jaylal and others reached at the place of occurrence. It is also stated that witness Jaylal is in hand and glove with accused and witness Suraj has died. 23. P.W.-5 S.I. Devideen Singh, who is Investigating Officer of the case has stated on oath that after lodging the F.I.R., he started investigation of case. He recorded the statement of Head Moharrir, Shiv Mangal Singh and visited the house of complainant, searched the house of accused-appellants Devi Dayal, Arjun Pasi, Ambika Pasi and Fareed but neither any of the accused was arrested nor any of the stolen property was recovered from their houses. Thereafter, he visited the place where the accused have committed rape upon the victim and prepared the site plan. He recovered dibari and petticoat of victim ‘X’ and prepared recovery memo thereof separately and proved the same in court as Ext. Ka-4 and Ext. Ka-5 and after collecting all the relevant evidence submitted charge-sheet, which he proved in court as Ext. Ka-6. 24. He recovered dibari and petticoat of victim ‘X’ and prepared recovery memo thereof separately and proved the same in court as Ext. Ka-4 and Ext. Ka-5 and after collecting all the relevant evidence submitted charge-sheet, which he proved in court as Ext. Ka-6. 24. P.W.-6 Head Constable, Shiv Mangal Singh, who proved F.I.R. as Ext. Ka-7 and G.D. No.12 as Ext. Ka-8 and written letter to C.M.O. and sent the victim ‘X’ for medical examination alongwith constable 298 Balak Ram and her parents. 25. P.W.-7 Dr. Indra Chopra, who stated that she medically examined the vicitm ‘X’ on 11.06.1989, proved the medical report, in which the hymen was found old torn. Uterus was normal in size. Vaginal smear was taken and sent for histopathological examination. She could not give opinion regarding the commission of rape that stated that victim ’X’ was used to intercourse or act like this and proved the medical report as Ext. Ka9. 26. D.W.-1 Rashid, who has stated that Fareed Khan was in his house to attend the marriage of his niece Parveen in the night in between 10/11.06.1989 from 10:00 p.m. onwards. 27. D.W.-2 Ram Dayal has stated that his house was adjacent to the house of the complainant Buddha and who wanted to grab the plot of accused Devi Dayal and further stated that the complainant wanted to marry his daughter victim ‘X’ with Devi Dayal and father of Devi Dayal refused then has been falsely implicated in the present case. 28. D.W.-3 Ram Kishun has stated that about five years back in the month of Jeth, Saptami on Saturday he went to attend the marriage of the daughter of accused Arjun Pasi and Arjun Pasi and Ambika Pasi remained there whole the night. 29. As per prosecution story, victim ‘X’ and her younger sister Goda were sleeping on the same cot in the courtyard and his brother was sleeping in courtyard on the separate cot. Mother of the victim ‘X’, other children were also sleeping nearby on the mat when the accused are said to have entered the house and kidnapped the victim ‘X’ across the river Pirai. Mother of the victim ‘X’, other children were also sleeping nearby on the mat when the accused are said to have entered the house and kidnapped the victim ‘X’ across the river Pirai. So far as the robbery is concerned, learned trial court found that nothing recovered from the possession of the accused, hence, none of the accused were convicted under Sections 394 and 397 I.P.C. So far as the incident of rape is concerned, rape is said to have committed by four persons, therefore, there is no much probability of struggle on the part of the victim ‘X’. It is argued on behalf of learned counsel for appellants that four appellants are said to have committed rape upon the prosecutrix ‘X’ but no sign of injury is found on the body of prosecutrix. As per prosecution version, she was throne under the tree of Palash and was committed rape. If she would have put any resistance, some injuries were bound to happen on the back of prosecutrix. P.W.:-7 Dr. Indra Chopra found no external or internal injuries on the body of prosecutrix. This argument is devoid of merit. It cannot be said that whenever resistance is offered, there must be some injuries on the body of prosecutrix. The appellants were four in number and the prosecutrix being a girl of eighteen years, she was not expected to offer such resistance as it would cause injuries to her body. It is not correct to say that there was no injury at all. As it has been mentioned by P.W.-7 Dr. Indra Chopra that hymen was old torn present. In this regard Hon. Apex Court held in Balwant Singh and Another Vs. State of Punjab AIR 1997 Supreme Court page 1080 that injuries are not always necessary to be found on the body of prosecutrix during rape if she fails to offer resistance. Apex Court has also held in Gurcharan Singh Vs. State of Haryana 1973 ACC page 04 that absence of violent and stiff resistance on the part of the prosecutrix in the present case may as well suggest helpless surrender to the inevitable due to sheer timidity. Therefore, mere absence of injuries on the body of prosecutrix do not brush aside the whole prosecution case. 30. It is also pertinent to mention here that the prosecutrix ‘X’ fully corroborated the prosecution version. Therefore, mere absence of injuries on the body of prosecutrix do not brush aside the whole prosecution case. 30. It is also pertinent to mention here that the prosecutrix ‘X’ fully corroborated the prosecution version. Its also clear that under the threat of life prosecutrix was raped. As per prosecution version, all the four armed with half bore gun and country made pistol. Therefore, the prosecutrix cannot be expected to offer resistance or any type of struggle. 31. It is also submitted on behalf of appellants that there is no independent witness of the occurrence. It is also pertinent to mention here that the victim was taken away by the four accused across the river Perai. There cannot be any independent witness of the incident, however, the prosecutrix appeared in witness box and fully corroborated version of F.I.R. The statement of prosecutrix cannot be disbelieved merely because there is no corroborative evidence. In this regard, Hon. Apex Court in State Of Maharashtra vs Chandraprakash Kewal Chand Jain, AIR 1990 page 658, wherein it is held that “ordinarily an indian women would be most reluctant to level false accusation of rape involving her reputation unless she has a very strong bias or reason to do so. Therefore, the statement of victim ‘X’ which fully corroborates the prosecution version cannot be suspected and disbelieved as solitary statement of prosecutrix can be believed for proving the charges under Section 366 IPC.” Hon. Supreme Court has given guidelines in State Of Maharashtra vs Chandraprakash Kewal Chand Jain in the paragraph 16 of the above case it is observed that”….. 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….” In paragraph 17 , it was further observed that “ To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime…….The standard of proof to be expected by the Court in such cases must take into account the fact that such crimes are generally committed on the sly and very rarely direct evidence of a person other than the prosecutrix is available. Courts must also realise that ordinarily a woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity.” 32. In the impugned case, the statement of prosecutrix is corroborated by P.W. 2, 3 and 4, who are brothers and parents of prosecutrix as she was kidnapped by accused Devi Dayal and Ambika Pasi in their presence and rest of accused robbed the houselhold goods, jewellery and cash. 33. It is submitted by learned counsel for accused-appellants that prosecutrix as is said to have kidnapped and carried across the Perai river but there is no sign of the fact that she was throne on grass or leaves and raped. No contents of grass or leaves were found on the clothes of prosecutrix. The court find this argument very week as prosecutrix ‘X’ hereself stated in her statement that after the commission of crime of rape, all the accused fled away. Then, she herself came by crossing river and when she reached to the village, she was in wet clothes. Therefore, the presence of grass or leaves on the clothes of the prosecutrix could not be found out. 34. It is also argued by learned counsel for accused-appellants that no blood stained or spermatozoa were found on the clothes of prosecutrix. In the given set of circumstances, the prosecutrix came across the river and she was in wet clothes. Therefore, the presence of leaves, grass and blood stains or spermatozoa is not possible to be found on the body or clothes of prosecutrix. 35. Learned counsel for the accused appellants advanced the argument that there are major contradictions in the statement of witnesses of fact and learned trial court did not address those contradicions. On the persual of statement of witnesses, there is no major contradicions in the statement of witnesses as all of them corroborated the testimony of prosecutrix herself. However, minor contradictions are there. On the persual of statement of witnesses, there is no major contradicions in the statement of witnesses as all of them corroborated the testimony of prosecutrix herself. However, minor contradictions are there. It is to be kept in mind that the witnesses are illiterate and the statement were recorded after the lapse of three years from the date of occurrence and the evidence of the witness were recorded in piecemeal with the gap of time. Therefore, the discrepancies are bound to happen. On the basis of minor discrepancies, the statement of witnesses cannot be discarded, if they are otherwise truthful. 36. The prosecution has proved the place of occurrence as the prosecutrix has herself pointed out the place where she was raped by all the accused-appellants . The place of occurrence has also been shown by Investigation Officer in the site plan and, therefore, the place of occurrence is ascertained and there is no doubt about the place of occurrence. 37. The accused-appellants placed the plea of alibi in the defence but they could not prove the plea in trial court as well as in appellate court. The accused appellant did not file the invitation card of marriage to prove that the accused Arjun Pasi was in the marriage of his own daughter. However, if there was marriage on the fretful date, the appellant must have possessed an invitation card of the marriage of his daughter. Accused Ambika Pasi also claimed alibi on the ground that he had gone in the marriage of the daughter of the co-appellant Arjun Pasi but he could also not proved the defence that there was the marriage of daughter of Arjun Pasi and he attended the marriage. So far as accused Farid Khan is concerned, he stated in his statement recorded under Section 313 that he had gone to attend the marriage of his niece Parveen but Fareed Khan also could not proved the marriage of his niece. He could not even told to the court that where the marriage of his niece was performed. It is further pertinent to mention that accused Fareed khan, who is said to have been died on 06.09.2018 is dismissed as abated vide order dated 24.11.2022. Hence, none of the accused could prove their plea of alibi. 38. He could not even told to the court that where the marriage of his niece was performed. It is further pertinent to mention that accused Fareed khan, who is said to have been died on 06.09.2018 is dismissed as abated vide order dated 24.11.2022. Hence, none of the accused could prove their plea of alibi. 38. P.W.7 Ramdayal deposed in court that there was enmity between the complainant and the father of accused Devi Dayal regarding the land and also that father of Devi Dayal refused to accept the prosecutrix as his daughter-in-law. Therefore, accused Devi Dayal has been falsely implicated. These two arguments are self-contradictory and cannot run parallel. If there is strong enmity regarding the land between complainant and father of accused Devi Dayal, then there is no possibility that complainant would marry his daughter to Devi Dayal. D.W.-2 stated that there was enmity between complainant and father of the appellant Devi Dayal but no such document of any litigation regarding the land is adduced as a defence evidence. Therefore, the defence of appellant is not substantiated by any cogent evidence. 39. Learned counsel for the appellants stated that accused Devi Dayal has served out four years of incarceration, accused Ambika Pasi has served out three years and two months of incarceration and accused Arjun has served out incarceration of two years, therefore, it is prayed to commute the sentence of appellants to the period already undergone by them. It is also submitted that accused have no criminal antecedent apart from this case. Therefore, a lenient view may be taken in the case. 40. Section 376 (2)(g) I.P.C. that in case of gang rape, the rigorous imprisonment shall not be less than ten years. As the accused persons are charged with Section 376(2)(g) I.P.C., it is not a fit case to commute the sentence from ten years to the period already undergone by them. 41. No plausible reason is offered by appellants why they are falsely implicated in the case. No explanation is given by the appellants during the statement recorded under Section 313 Cr.P.C. as to why they are falsely implicated in the case. On the contrary, the prosecutrix in so many words proved the prosecution version as to the fact that she was taken away by accused Devi Dayal and all of the appellants committed rape against her will. 42. On the contrary, the prosecutrix in so many words proved the prosecution version as to the fact that she was taken away by accused Devi Dayal and all of the appellants committed rape against her will. 42. Hence, the prosecution successfully proved the charges under Section 366 and 376 IPC against all the accused beyond reasonable doubt by the cogent evidence of prosecutrix as well as by the evidence of P.W.-2 and P.W.-4, who are brother and parents of prosecutrix. It is also pertinent to mention here that P.W.-7 Dr. Indra Chopra prepared the medical report, in which the hymen was found old torn. In these circumstances where prosecutrix unequivocally proved the case of rape against all the appellants and appellants could not offer any explanation to the false implication of appellants in such a heinous crime. 43. The judgment of trial court is based on cogent evidence and is found in consonance with the evidence on record. The complicity of all the four accused is found in the crime and the judgment and order passed by learned trial court is liable to be upheld and the appeal is liable to be dismissed. 44. The Appeal is dismissed. The judgment of trial court is upheld. The appeal against appellant No. 4 Fareed Khan, who is said to have been died on 06.09.2018 is dismissed as abated vide order dated 24.11.2022. The appellant Nos. 1, 2 and 3, namely, Devi Dayal, Arjun and Ambika are on bail. They shall surrender before the court concerned within one month from the date of judgment and shall be sent to jail to serve out the remaining sentence. Learned trial court shall prepare the conviction warrant and sent them to jail. 45. Personal Bond and bail bonds of the accused are cancelled. 46. Certified copy of this judgment along with the lower court record be sent to the trial court concerned for necessary information and compliance.