Gangubai Nisal, P.W. 3 was married to Santu Nisal about three years prior to the incident.Ever since her marriage, she was living with Santu in village Nalegaon within the limits of Taluka Dindori, District Nasik.She was the second wife of Santu.The name of the first wife has not come in evidence.All the three respondents are also said to be residents of village Nalegaon.On 28-7-1983, her husband Santu along with his first wife had gone to the field for agricultural operations.It was decided that she would carry food to the field.At about 11/11.30 a.m. after preparing the food, she set out for the field.On the way, she stopped at the shop of the respondent Suresh in order to buy a match-box.Before entering the shop, she kept the food and the blanket which she was carrying outside the shop.As soon as she entered the shop, she found that the three respondents namely Suresh, Sahebu and Damu were present.She asked Suresh to give a match-box.Sahebu thereupon caught hold of both her hands and dragged her inside the middle room.It appears that the shop of Suresh was housed in one of the rooms of his residential premises.Thereafter, Sahebu stuffed cloth inside her mouth; pressed her breasts; and Damu took off her sari.During the trial, she was shown the sari and blouse which she was putting on and she recognised them.The evidence of the prosecutrix is that after being raped, she went to her house.In the evening, her husband Santu along with his first wife came home.At that time, she was shivering.Evidence of both the prosecutrix and her husband Santu shows that she was carrying pregnancy.Santu deposed that when he reached home, she was unable to speak.But, after sometime, she disclosed to him that the respondents had raped her.Santu had a feeling that the prosecutrix may not survive.Consequently, he and his first wife started fomenting her abdomen.Next evening (evening of 29-7-1983) the prosecutrix aborted.The evidence of Santu is that on account of her pregnancy, and abortion, she was in a state of bad health.Evidence of Santu shows that the day following the abortion of the prosecutrix, Gangubai, he took her to police station, Dindori.3) No matting of public hair.4) Swab taken from post fornixShe is habitual of intercourse."In short, theevidence of the prosecutrix is that on the date of the incident, namely on 28-7-1983, her husband Santu with his first wife had gone to the field and had asked her to bring food during the course of the day.At about 11/11.30 a.m. after cooking the food, she proceeded for the field.On the way, she stopped to buy a match-box, from the shop of respondent-Suresh.ORDER Vishnu Sahai, J.The appellant aggrieved by the judgment and order dated 11-5-1984, passed by the Additional Sessions Judge, Nasik, in Sessions Case No. 117 of 1983, acquitting the respondents for an offence punishable under section 376 I.P.C. and 342 I.P.C., has preferred the present appeal under section 378(1)Briefly stated the prosecution case as emerging from the evidence of the prosecutrix Gangubai Nisal, runs as follows :---Then, she was subjected to the traumatic experience of being raped by all the three respondents.First Sahebu raped her.Next, Damu raped her and finally Suresh raped her.It is said that the said persons raped her after latching the door from inside.On being shown the lock (Article 2) in the Court, she identified the same.It appears that after she had been ravished, by the three respondents, her brother-in-law Shankar came to purchase a tobacco packet from the shop.He kicked the door of the shop after asking as to who was inside it.Thereupon, Suresh opened the door and took her out of the shop and sent her home after kicking her.As she was not in her senses, she did not disclose the incident to Shankar.It is alleged that while being raped, she was putting on a string of black beads around her neck and the same was broken.That day i.e. on 30-7-1983, at 4 p.m. Gangubai lodged an F.I.R. at Police Station Dindori.After registering the case on the basis of the F.I.R., head constable Madhukar Jadhav, prepared a Yadi and sent Gangubai for medical examination to Primary Health Centre, Dindori.She was examined there, the same day (30-7-1983) at 4.30 p.m. On examining her, the doctor found as under :---"1) No mark of violence such as scratches, bruises, on back, forearm, wrist, breast, chest, inner aspect of thighs and on bullock.2) Mo blood or seminal stains on weared clothes at the time of exam.As per the dictation of Dr. (Mrs.) Sulay, Dr. Anand Kakade, RW. 6, noted down the findings.The reason for this unusual practice, which emerges from the evidence of Dr. Kakade is that Dr. (Mrs) Sulay toid him that she did not want to note down the findings in her own hand because, if she did so, she would be required to attend the Court.The learned trial Judge rightly, in our Judgment, has deprecated this attitude of Dr. (Mrs) Sulay.Dr. (Mrs) Sulay told Dr. Anand Kakade that excepting bulkiness of uterus, she did not find any positive finding suggesting recent abortion.Evidence of Dr. Kakade also is to the effect that in order to ascertain whether Gangubai had contracted pregnancy, she was referred to Dr. Kotwal, who was a Pathalogist.Dr. Kotwal gave a certificate in the negative after the pregnancy test.The investigation was conducted in the usual manner by P.W. 7 Madhukar Jadhav, P.W. 8 Vasant Naik, Police Jamadar and a P.S.I. whose name has not come in the evidence.Evidence of Police Jamadar Vasant Naik is that on 31-7-1983, he visited the place of the incident.He found broken string of black beads lying in the house and seized the same under a panchanama.He examined P.W. 5 Santu, P.W. 4 Shankar and some others the same day.He called the three respondents at the office of the Gram Panchayat and arrested them.He thereafter, sent them for medical examination to Primary Health Centre, Dindori.They were examined there on 31 -7-83 and no scratches were found on their person.7A. It is said that during the course of the investigation, sari and blouse which the prosecutrix was putting on at the time of the incident and the clothes which the respondents were putting on, were seized under a panchanama.We are not going deeper into this aspect because, the evidence in respect of recoveries of clothes from the prosecutrix and the respondents does not inspire any confidence.Out of two public panchas, Rajaram Raut, P.W. 1 candidly stated that nothing was seized in his presence from the respondents and Gangubai did not produce her sari and blouse in his presence.The second panch Gopala Hari, P.W. 2 turned hostile.After completion of the investigation, the respondents were charge-sheeted.The case was committed to the Court of Sessions in the usual manner.To the said charges, they pleaded not guilty and claimed to be tried.During the trial, in all, the prosecution examined 8 witnesses.Only one of them, Gangubai, is an eye-witness of the incident.In defence, no witness was examined.After recording the evidence adduced by the prosecution; the statement of the respondents under section 313 Cr.P.C.; and hearing the learned Counsel for the parties, the learned trial Judge acquitted the respondents under both the counts.It is this acquittal of theirs, which has been impugned by the appellant-the State of Maharashtra, through the present appeal.We have heard Mr. R.S. Deshpande, Additional Public Prosecutor for the appellant and Mr. V.Z. Kankaria for the respondents.At that time, inside the said shop the respondents Suresh Sahebu and Damu were present.Instead of giving her a match-box, Suresh dragged her inside the middle room, Damu put on the latch; thereafter, Sahebu stuffed a cloth in her mouth; pressed her breasts; and Damu took off her sari.Then, all of them by turns raped her; first Sahebu, then Damu and finally Suresh.From her evidence, it appears that after she had been ravished by all the respondents, her brother-in-law Shankar, came as he had to buy a tobacco packet from Suresh's shop.He kicked the door of the shop.Suresh opened the door of the shop.Thereafter, Suresh forcibly took her out from the shop and after kicking her, asked her to go home.She stated that she was not in her senses and hence did not tell Shankar anything.Thereafter, she went to her house.In the evening, Santu with his first wife came.She was in pains and agony and the same must have been aggravated on account of the respondents raping her because, the evidence is she was carrying pregnancy.Sometimes, later when she regained senses, she disclosed to Santu her traumatic experience of being raped by the respondents.Evidence of the prosecutrix and that of Santu is that she was in great agony and consequently, Santu and his first wife were fomenting her abdomen.Next evening, she aborted.Thereafter, next day i.e. on 30-7-1983, Santu along with her proceeded to Dindori Police Station, where she lodged an F.I.R., at 4.50 p.m.We have gone through the said statement of the prosecutrix.We find the same to be implicitly reliable.She stated that she was putting on the said string at the time of the incident and it broke while she was being raped.The two principal reasons which have weighed with the trial Court in holding the prosecutrix to be a consenting party are absence of injuries on her person and on that of the person of the respondents.The courts cannot overlook the fact that in sexual offences delay in the lodging of the F.I.R. can be due to variety of reasons particularly, the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family.It is only after giving it a cool thought that a complaint of sexual offence is generally lodged."In the instant case a very cogent explanation has been forthcoming for the delay in the lodging of the F.I.R. The prosecutrix has alleged in the F.I.R. that in the evening, her husband Santu and his wife came and she told Santu about the incident.She has also stated therein that since she was carrying pregnancy, she was having a throbbing pain in her stomach and her husband and his first wife were fomenting her abdomen.She has stated in the F.I.R. that it was the next day, that she aborted.Evidence of Santu is that it was in evening time that she aborted.If in such a situation, the F.I.R. was lodged at 4.50 p.m. on 30-7-1983, it cannot be stigmatised as being belated.We can safely assume that it must have beensometimes on the morning of 30-7-1983 that the prosecutrix and her husband Santu would have proceeded from their house to lodge the F.I.R. From a perusal of para 2 of the statement of police Jamadar Vasant Naik, it transpires that Police Station Dindori, where the F.I.R. was lodged was situated about 14 kms.from the village Nalegaon where the incident had taken place.In the said para, the said witness stated that Nalegaon is situated 4 kms from Umrale and Umrale is situated at a distance of 10 kms.from Dindori.In our view, in order to cover a distance of 14 kms which is approximately 9 miles, sometime must have been spent.Neither the prosecutrix nor her husband Santu were cross-examined on the mode of transport they took for proceeding to Police Station, Dindori.In our judgment, the said reason for acquitting the respondents is also untenable.The trial Judge has also held that it appears that the prosecutrix was a consenting party.We may have agreed with him, had she nominated only one person as her rapist.Here, as per her evidence, she was raped by three persons in immediate succession.In our judgment it is impossible to accept that the prosecutrix would have consented to have sexual intercourse with three persons.The trial Judge was wholly oblivious to this angle of approaching the evidence of the prosecutrix.In cross- examination, Dr. Kakade statedthat if a woman is examined within 7 to 10 days of her abortion, then alone a definite opinion can be given whether abortion was done or not.In the instant case, the evidence is that the abortion took place on 29-7-1983, and the prosecutrix was medically examined on 11-8-1983 i.e. two weeks after abortion.Now only one question remains to be answered i.e. the quantum of sentence to be awarded to the respondents.We have carefully weighed the rival submissions.The respondents should thank their stars that at the time when the incident took place, the amended provisions of section 376 I.P.C. which provide for a minimum sentence of 10 years in case of gang-rape, had not seen the light of the day.Looking to the overall circumstances, we feel that the ends of justice would be squarely satisfied if each of the three respondents are sentenced to undergo five years R.I. for the offence under section 376 I.P.C. and one months R.I. for the offence under section 342 I.P.C. Since these offences arise out of the same transaction, we feel that the sentences on both the counts should run concurrently.In the result, this appeal is allowed.The acquittal of each of the three respondents namely (1) Suresh Nivrutti Bhusare (2) Sahebu Narayan Shete and (3) Damu Kashinath Shete for offences under sections 376 and 342 I.P.C. are set aside.Each of the said respondents are found guilty of having committed said offences and are sentenced to undergo five years R.I. under section 376 I.P.C. and one months R.I. under section 342 I.P.C. Their said sentences shall run concurrently.In case an application for a certified copy of this judgment is preferred, the same shall be issued on an expedited basis.Appeal allowed.

Sections cited: Section 376 in The Indian Penal Code, Section 342 in The Indian Penal Code