Qa$ &w #® © HGH COURT OF cam’x‘TisGARH AT 31 LAspUg ’(c.G.) ;. .y IH wa 3t { 1 t ‘ 4 \ ABE-EAL UNDER SECTEON 374(2) O}? CODA“ OF CRIMIEYAL PROCEDURE‘ 7 criminal Agpeal w ‘0‘) /2002. A : (l) Anil alias Mangu s/o Lakhamu EKCC. {In Jail) age 27 years, Gccupation - Driver,R/o Bazarpara BhairamgaM‘n. ' g2) Sanju alias $anjay S/o $arju K t Singh, age 2A. years, Occupation— Driver,R/o Bus Stand Ehairamgarh. (3) Manoj sing‘n 3/9 Bharat Bhushan ‘ aged 25 years, Occupation ~ ‘i Agriculture, R/O Eazarpara Ezhairamgarh Distt §antewada , . (C.G . ) . VrgRSU' ’r{L.S9ONDENT : StatG o£ chhattisgar‘n through P.;:3. Bbairamgarh,1)istt. — Dantewada (C.G.)’ 4 1 HIGH COURT OF CHHATTISGARH AT BILASPUR Cr. Appeal No.1o1122002 Anil Alias Mangu & chars Vs. Sfafe of Ch'haffisgarh u f Post for Judgment 0708:2006 i j "\’ 3di- ‘ ‘ Dilip Raosaheb Deshmukh Judge ” ’ 07.08.2006’ ’ % 9 HIGH COURT OF CHHATTISGARH AT BILASPUR Cr.App¢ol No.1011/2002 Before: Hon‘bie Shri Dilip Raosaheb Deshmukh, J. Anil Alias Mangu & a‘rhers Vs. Sfa‘te of Chha'r‘l'isgarh Presen‘ti- Shrl Abhay Tlwnr-I learned Counsel for fhe appellants No 1 & 2 Slam ManoJ Mishm learned Counsel for fhe appellan‘r No 3 Slm Aslush Shukla learned Govt Advocnfe for fhe Sfafe £ JUDGMENT ° (Delivered on 07.08.2006) This appeal is direc'red againsl lhe judgment da'red 1.8.2002 delivered by Shri R.5.Sl1arma, Special Judge, (5.C/5.T‘ Acf), Basfar af Jagdalpur- in Sessions Case No.472/2001 whereby The appellanfs were convici’ed under Section 376 (2) (g) I.P.C. and Section 3 (1) (xii) of the Scheduled Caste and Scheduled Tribe (Prevention of J Atrocities) Act, 1989 (hereinafter referred to as the Act of 1989) and sentenced to undergo rigorous imprisonment for ten years and fine of Rs.4,000/- and in default to undergo additional rigorous imprisonment for two years under Section 376(2)(g) I.P.C. and to undergo rigorous imprisonment for 3 years and a fine of Rs.2000/- and in default to undergo additional rigorous imprisonment for nine months under Section 3 (1) (xii) of the Act of 1989. 2. During course of hearing, it was not disputed that the prosecutrix belongs to the Scheduled Tribe (60nd caste). It was also \ not disputed that the prosecutrix had accompanied the appellants in the Jeep towards the Jungle on 12 7 2001 at about 5 00 P M / / / / (/i @. Briefly sfahd We prosecufion sfor-y is fhaf the prosecutrix is a widow and is handicapped. On 12.7200! cf abouf 5.00 PM. fhe prosecu'frix while returning from \‘he Mil! wi'fh Mahesh P.W.5 sfopped on way since Mahesh had +0 purchwe a ébpy. A‘r fha‘r fime. appellanf Anii Q Mangu came there in a Jeep. The uppeHanf was known To ‘fhe prdsecu‘rrix since he offen used 1'0 visif her house. The appellun'r-Anil V @ Mungu asked fhe prosecuh‘ix, if she wanted 1‘0 go to Mnrwadu and brtnging the Jeep near- her and rnhde her sit in the Jeep. Appellant Sang @ Sanju and Manoj Singh olSo sat in the Jeep on both sides of the prosecutrix. The prosecutrix asked Anil to wait for Mahesh but adpellant-Anil @ Mangu drove the Jeep towards Mar-wada. On way, adpellant-Anil took the Jeep towards the forest. The appellant Manoj and Sanjay @ Sanju started fondling the prosecutrix by kissing her ahd pressed her breasts. On reaching the jungle, all the appellants forcibly took the prosecutrix out of the jeep. Appellant-Sonjay removed the some, saya and underwear of the prosecutrix and after undressing himself, committed rape on the prosecutrix while appellant Anil @ Mangu and Manoj forcibly held the prosecutrix. At this juncture, Ajay, brother of the appellant Sonjay and another person arrived on a motor cycle. Seeing them, appellant-Sonjay and Mano; started to run away. Ajay, scolded appellant—Anil as to why they brought the girl and asked the appellants to reach the girl home. Thereafter, the appellant got the prosecutrix seated in another Jeep going towards Marwada. At evening, the prosecutrix reached the house of her relative namely Jaggu Dada and met Champa P.W.6, her sister-in-law but did not inform about the occurrence. On the next date i.e. 13.7.2001, the prosecutrix informed Champa P.W.6 about the incident who in turn told Jaggu Dada. Jaggu Dada accompanied the prosecutrix to Police Station, Bhairamgarh situated 5 kilometers away z/ where the prosecutrix lodged FIR. at 4.00 PM. ,eez/c/ 3. / w 4. On 14.7.2001, seven red and green colaured pieces of bungle§ un§ Three whife pieces of bangles wi-rh blue. linings were seized vide E)§.P.2 from 'H'Ie &rremarka fores'r Le. #he place of accurrence. One yeHow surez, one pink pefficouf, we red underwear and +wo green bdngles wi'rh red linings were seized from The prosecufrix vide Ex.P‘3. Tlie prosecufrix was sen'l’ for medical examinafion. Dr. Smt Suchifa Jdmes P.W.8 who examined fhe prosecufrix on 14.7.2001 a1' 5.00 PM. found Thai she was having pain in her privafe parfs and her hymen was des‘l‘rfoyed‘and acfive bleeding was presenl Through vaginal orifice. She also found abrasion F x 11,-" over righT shoulder and anoTher abrasion -},—" x 21:“ over righT elbow joinT of The prosecuTrix. Vaginal smear was Taken. Slides were sealed and handed over To ConsTable which in Turn were seized vide Ex.P.4. Dr. SmT. SuchiTa James referred The case To GynecologisT aT Maharani HospiTal, Jagdalpur. She also examined The saree, peTTicoaT and underwear of The prosecuTrix buT did noT find any sTains on The saree. WhiTish sTains were seen on The peTTicoaT and underwear of The prosecuTrix. Chemical analysis was advised for confirmdTion of presence of semen and human spermaTozoa. Dr. SmT. Manorama Tiwari P.W.2, $ynecologisT. Maharani HospiTal, Jagdalpur examined The prosecuTrix on 17.7.2001 buT did noT find any injury on The vulva and perineum. No bleeding was preSenT aT The Time of her examinaTion per vagina. 5. AppellanT-Sanjay Singh was senT for medical examinaTion. Dr. Gajendra Singh Dhruw P.W.3 examined him on 16.7.2001 and found ThaT he was capable of performing sexual inTercourse. No inTernal and .» exTernal injury was seen on penis. One Jeans full panT, one underwear and one half “T" shirT were removed from The body of The appellanT and were seized vide Ex.P.5. AfTer compleTion of invesTigaTion, appellanTs were prosecuTed for commiTTing gang rope on The prosecufrix, a woman belonging 1'0 1he Scheduled Tribe. During Ma! fhe prasecufion did no+ produce The repor'r of F.5.L. 1‘0 esfablish presence of semen or human sperma‘rozoa on The vaginal sHdes or The clothes of The prosecuTrix and The appeHanT-Sanjay. 6; The appellunTs abjured Their guilT, pleaded innocence and led no el/idence in defence. The prosecuTion examined as many as eighT wiTnesses. Relying upon The ‘TesTimony of The prasecuTrix duly corroboraTed by Dr. SuchiTa James P.W.8, Mahesh P.W.3 and Champa PVI/‘g The learned Trial Judge convicTed‘and senTenced The appellanTs as aforesaid in para - 1. £ 7. Shri Abha? Tiwari and Shri Manoj Mishra, learned counsel for The appellanTs argued ThaT The TesTimony of The prosecuTrix ThaT all The Three appellanTs had commiTTed rape on her was wholly unworThy of crediT since noT only in The firsT informaTion reporT buT also in her sTaTemenT under SecTion 161 Cr.P.C. The prosecuTrix did noT menTian abouT rape having been commiTTed on her by The appellanTs — Anil @ Mangu and Manoj. 5o fur as The allegaTion levelled in The firsT informaTion reporT regarding These Two appellan‘l's fondling The prosecuTrix, kissing her and pressing her breasTs, in her TesTimony she did‘ noT say a word abouT This. The prosecuTion neiTher examined The InvesTigaTing Officer nor proved The FIR. lodged by The prosecuTrix for which an adverse inference oughT To have been drawn againsT The prosecuTion. IT was also conTended ThaT Ajay and The person accompanying him on The moTorcycle who saw The appellanTs wiTh The prosecuTrix in The foresT immediaTely afTer The occurrence, were noT examined by The prosecuTion. Learned counsel for The appellanTs also argued ThaT The driver of The Jeep who broughT The prosecuTrix To Marwada was also noT examined by The prosecuTion. The admission of The prosecuTrix in paragraph 9 ThaT she did noT u narra're 'rhe inciden'r +0 anybody a? home or any person si'Hing in 1+:e Jeep while ramming from 'I'he phoe of occurrence rendered her unworfhy of credit. I'f was aiso poin'fed cu? 1hu+ The prosecufrix had smwd in paragraph 6 The? she had merely lodged a reporf of her being fondled (Chhedkhnni) by fhe appellants. Learned counsel for ‘l‘he appellum’s also contended that adverse inference ought to be dnown against the prosecution for not producing the report of F.5.L., a material piece of evidence becau’se if the three appellonts had gang raped the prosecutrix, her vaginal slide would have shown presence of semen and human spermatozoa. Shri Abhay Tiwari, learned counsel for tile appellants-Ami and Sanjay contended that the possibility that the appellmt Sanjay had committed sexual intercourse with the prosecutrix with her consent could not be ruled out. Reliance was placed on $nish/al Sch V. 51am of Bihar 2003 (1) C.6.L.J. 138 to support the contention , that the prosecutrix had voluntarily accompanied the appellants and sexual intercourse with the prosecutrix by the appellant—Sonjay was wholly with her consent and did not amount to rape. Reliance was also placed in 5ur'es/1 N. Bhusare & Ors'. K 51afe of Maharashfm 1998(6) Supreme 463 while contending that the material inconsistency in the evidence of the prosecutrix and FIR. lodged by her also rendered her unworthy of credit. Lastly, reliance was placed in Dew'nder Sinqh and others v. State of HP, A.I.R. 2003 Supreme Court 3365 while arguing that the testimony of the prosecutrix that she was raped forcibly by three young persons after removing her clothes was wholly unreliable since no injury or tenderness was found in the genital area. Thus, the medical evidence could not affirmatively show that the prosecuttix was subjected to sexual assault, as alleged. It was also contended that naming only appellant-Sonjay in the first information report as also in her statement under Section 161 Cr.P.C. as the person R\L,kw commif‘fing rape on her cas'i's a serious doub‘l' on-fhe vemci'ry of fhe prosecufrix while she deposed fhm‘ all fhe appellants had raped her. On 'l'hese premises, i'l' was urged That 1he appellnn‘l's were enfi'l’led 'l'o be acqui‘l‘led. In The allerna'l'ive, i1' was also urged by 5hri Abhay Tlwarl, learned counsel for fhe appellan'r-Sanjay 'lhaf The sen‘rence awarded by 'l'he learned 'rrial Judge To appellan'l Sanjay was 'loo harsh and should be reduced lo The minimum senfence of 7 years under Section 376 I.P.C. Reliance was placed on Sfafe af-Rajasfhan V. Kishan/a/ 2002 C.L.T. (SC) 124. 8.‘ On The o‘lher hand, Shri Ashish Shukla'; learned Governmen‘l' Advocdfe argued in supporf of fhe impugned judgmen‘l while contending 'iha‘r ihe prosecu‘l'rix did no'i know Hindi and an inferpreier was used even while recording her evidence. Therefore, if was possible ‘l'hai' while recording The FIR. and her sTaTemenT under SecTion 161 Cr.P.C. The omission Torecord The facTum of rape having been commiTTed by The appellanT—Anil @ Mangu and Manoj could have occurred. He conTended ThaT despiTe The above omissions The TesTimony of The prosecuTrix P.W.4 was'corroboraTed by Champa P.W.6. IT wasalso conTended ThaT The TesTimony of Dr. SmT. SuchiTa James P.W.8 wholly corroboraTed The TesTimony of The prosecuTrix ThaT she was gang raped by The appellanTs. IT was also conTended ThaT The evidence of The prosecuTrix clearly revealed ThaT The appellanTs were in a posiTion To dominaTe The will of The prosecuTrix, a member of The Scheduled Tribe and had sexually assaulTed her in furTheranoe of a common design. On These premises, iT was urged ThaT convicTion and senTence awarded by The learned Trial Judge was well founded and e did noT call for any inTerference. 9. Having considered The rival submissions, I have minuTely perused The evidence on record. The prosecuTrix P.W.4 aged abouT 28 years deposed Thu? while Mnhesh had gone to purchase a copy she was si'H'ing in The HoTeL The appellarrrs came fhere in a Jeep and fook her towards 1he foresf despi'l'e her requesf +0 waif 'rill Mahesh arrived. She asked 'rhe appellanfs \‘he reason when she was made fo aligh'r from fhe Jeep in fhe forest She deposed Thaf Thereafter 1he appellanfs fook her fa fhe fares? where all fhe 1hree appellants cdmmilfed rape on her. She fur'l'her deposed fhaf she had shou'red bgrl' in vain and 'l'he appellanfs hdd forcibly raped her one affer fhe other? Thereaf'ler, 1’he appellan‘ls broughf her inwards lhe Jeep , 90+ her sea‘l’ed andlef‘l her a'l Marwada. In cross—examinulion, she sfaled Tl‘la'l N£lanoj was the firs-r To commif sexual in‘l'ercourse wifh her. Her Testimony 1'ha1‘ she did scrafch and bif Manoj causing injuries on Manoj is nof worfh credence because neifher ihe prosecu'l’ion had sem‘ Mano} for medical examinafion during inves‘ligafion nor did The prosecufrixs'l'a'l'e in fhe FIR. or in her sfa‘remenf under Secfion 161 Cr.P.C. fhaf Manoj had commi'lfed sexual in'l'ercourse wi'l'h her. 10. In cross-examination para - 8, she furfher deposed fhaf affer Manoj, +he appellanT-Anil @ Mangu commiH’ed sexual infercourse wifh her. She sfafed fhaf afler fhe sexual assaul‘l‘ commif‘l’ed by Mano}, she was again made To lie down forcibly and ThereafTer appellanT Anil @ Mangu had commiTTed sexual inTercourse wiTh her. However, This parT of The TesTimony of The prosecuTrix is also rendered unworThy of crediT because in The firsT informaTion reporT as also in her sTaTemenT recorded under SecTion 161 Cr.P.C. Ex.D.1 she did noT narraTe abouT rape by appellanT-A‘nil @ Mangu. 11. So far as The allegaTions made by The prosecuTrix in The F.I.R. ThaT The appellanTs-Anil @ Mangu and Manoj were fondling her, kissing her and pressing her breasTs while she was being Taken Towards The foresT by driver appellanT-Sanjay, are concerned, no such quesTion Q was puf To 1412 prosecufrix during her fesw‘imany. If is here #haf The vim! rnia of 'fhe Trial Judge comes in 1’0 piuy. The wi'l'ness befare him was a Tribal, no? knowing Hindi and being examined #hraugh an inierprefer on whosa abilify 1'0 Translaief'rha Couri' was dependent whiie apprecia‘iing her evidence. In such cases, ihe Cour-r shauid nm‘e ihe demeanor sf ihe wi'rness, record her evidence by ques'fion and answer mei'hod so ihai‘ 1he record shaws fhai‘ she was asked abouf she relevan'i' facis of “the case and’her demeanor 1‘0 The questions noi'edxi‘j' is naiewori'hy 'l‘hai’ ihe prosecu‘i‘rix while being iaken by ihe appeiian‘is in ‘fhe S’eep had asked 'rhe appeiiun'i's f??? W 3W ?§ 3i“ meaning “diereby‘ “why They were behaving her in ThaT fashion". IT is here ThaT The conTenTion of The iearned Governmeni' AdvocaTe ThaT The facT ThaT The prosecui'rix did noT unders'i'and Hindi and was nerhaps noT asked by The ProsecuTor and The inTerpreTer, explained The omission in her Tesi'imony regarding The appellan'i's Anil @ Mangu and Manoj fondling kissing and pawing her, as menTioned by her in The FIR. as also in her sTaTemenT under SecTion 161 Cr.P.C. 12. The TesTimony of The prosecuTrix ThaT The Three appellanTs had Taken her To The foresT in The Commander Jeep driven by The appellanT—Sanjay while she objeeTed is wholly unrebuTTed during cross—examinaTion. In cross-examina'l'ion she also narraTed ThaT while she was being raped, The oTher appellanT Mangu had caughT hold of her. Here again The Trial Judge remained a silenT specTaTor and recorded evidence mechanically He ough‘i’ To have inTervened To geT The facTs clarified. Her TesTimony ThaT she was forcibiy ravished by QThe anpeilanT Sanjay is also wholly unrebuTTed. A specific suggesTion given by The defence in cross-examinaTion of The prosecuTrix clearly iends supporT To her TesTimony ThaT The Three appellanTs had Taken her To The ToresT in The Jeep driven by appellanT Sanjay‘ IT also esmbSishes fhu‘r while she was being ravished the appeHan'l’ Mmgu had caugh'r hold of her. 13. If is i’hus dearly borne oui’ from The 'resfimony of ’rhe prcsacui'rix 1'ha1’ fHé appalhn'fs had fercibhf faker! her +0 fhe forzsf in i’ha Jeep driven by The appeiiunf-Sanjay and appeilan‘fvSunjuy had ‘for‘cibiy commif‘ied rape on ihe prosecu’rrix while The appellani‘s Anil @ Mmngu held her and Manoj shod by. This also finds corroboraiion from ihe firs? infermufioh report lodged by the prosecuir‘ix wherein she had nurraied "that while Anil and Manoj had held her, appellanr- Sanjuy had farcibly ravished her afrer undressing her comple‘i’ely. As admi‘lh’ed by 'l'h‘e prasecufrix ‘l'o a ques‘l'ian puf by The defence. if appears plausible rhe‘l' afrer ihe appellan‘t Sanjay commi‘f‘l’ecl sexual irrl‘ercourse wi‘ih 'l’he prosecuirix wi'i'h ihe assisi'ance of i'he co« appellun’i-s, his brc'l’her Ajay and anm‘her person arrived a? fhe spa-r and scolded rhem, whereaf‘ier 'l'he presecuirix was pu‘l‘ in ano‘l’her Jeep by The appellants ’ro reiurn home. 14. The fesi’imony af ihe prosecuirix alsb finds corroborafion from fhe res-iimony of Champa P.W.6 who sia‘ied Thai' rihe prosecuirix had Told her fhal’ l'he appellan'l's had faken her and afTer undressing her, au-I’raged her modesi'y. If is frue Thar +he prosecu‘irix did noi‘ narra'ie ‘ The incidenT To her sisTer-in-law immediaTely on reTurning home and narraTed The incidenT To her on The nexT day buT iT is The naTural canducT of a woman who has been ravished. No adverse inference can be drawn on This ground. The very facT ThoT The prosecuTrix narraTed The incidenT To Champa and wenT To lodge F.I.R. aT P5. Bhairamgarh on eThe very nexT day i.e. 13.7.2001 wiTh Jaggu Dada and lodged a TruThful reporT of gang rape commiTTed on her only by appellanT Sanjay wiTh The acTive assisTance of appellanTs Anil @ Mangu and appellanT-Manoj Singh gives credence To The TesTimony of The prosecuTrix. Dr. SmT’ )0 5uchi'i'a James P.W.8 who exnminad The prasecu‘fr‘ix on 14.7.2001 also found *ha‘f +he prosecufrix was experiencing pain in her priva're par'fs arid was Heading fhrough The vagina! orifice. She nlsa found an. abrasion %" x %" on her righf shoulder/end anafher' abrasion on fine righ'i‘ elbow join‘l‘ cf ‘I’he same size. Thus, fhe fesi’imoriy of The présecu‘frix is also fuiiy carrobom‘ied by medical evidence. 15.‘ If is well sewed 1hu'r mei‘ely because ‘rhe fes'rimony sf 'l’l'le proisegu‘i’rix is exaggera'i'ed in ane aspect if canno‘l' be whclly fhrown 1 u eu'l of caesiderqfion since fhe maximum falsus in mo fa/sus in amnibus has been exploded long back as a my'l’h. If is alsa well se‘r‘l’led by a 4 cafena of decisioris 9f The Apex Cour? ihai' in an affence of rape, 'l'he 'i’esl'imony of ‘ihe prosecu‘l'rix is no? 'i'o be frea'l’ed a'i par wi'ih 'i'hai" of an accompliee bu? her Tes‘limony is lo be considered a'l' par wi'l'h +hai of on iojured wi'lness arid convicfion can be based on 'l’he sole ies-i’imony of fhe prosecun‘ix if i1” inspires confidence and is wor'lhy of credence. 16. Having considered 'fhe evidence led by fhe prosecu'fion minufely and offer perusal of ’l’he record wiTh circumspec‘l’ion, I am of fhe considered opinion Thar fhe faca‘ iha‘f 1he prosecufrix was faken by all 'ihe fhree appellan‘i’s in rhe Jeep +0 The foresw‘ where offer undressing her complefely +he appellan‘l’ Sanjay ravished her wi‘i‘h The ac‘l'ive assisrance of co-appellanfs Manoj and Anil is wholly war-thy of credit During cross-examination, fhe questions asked by The defence lend suppori‘ fo her Testimony. Mereiy because her fesfimony is found f0 be exaggerafed in so far as fhe acfual commission of rape by appellanf iinil @ Mangu and Manoj is concerned, her en'iire fesfimony cannoi' be iabelled as unworfhy of credif. Tesfimony of Mahesh Kumar P.W.5 aiso lends corroboration fo fhe fesfimony of fhe prosecufrix fha‘i she o;n H was mken by 'fhe Three appeHan'i's in +he Jeep *owurds The for-esf and. an her r‘e‘i‘urn 141a prasecuh‘ix had Toid him abou'l' being 'I'hrea'fened To be killed by +he appellan'rs which has also remained wholiy unrebuffed. Lekam§ Chaimmm P.W.5 alsa pmved The seizure of broken bangles from The place of occurrence. Dr. Gajendm Singh Dhruw P.W.3 has proved 'H'Ia‘i' upor! median! examinm'ion he found fhe appeHan'f-Sonjay capable of performing sexucd mfercourse If is also wholly unrebu‘f'l'ed m cross-exammo'fion The fesl'imony of Sm? Manomma Twmm fha? she ting examined The prosecul‘r‘ix on 17.7.2001 Le. 5 days affer ‘l'he oecurrence‘ m Mdhamni Hospi'ml Jagdulpur and did no'f find any InJury or bleeding from The vaginal orifice of The prosecu‘h'ix is wholly inconsequen'l'ial and does no‘l come 'l’o The aid of fhe defence in any manner since she examined The prosecuirix affer 5 days. Dr. Suchi’ia ladies P.W.8 has proved ihe exfernal injuries found on ‘l'he righf shoulder and righ‘f elbow join? of fhe prosecu‘frix as also The pain on her privaTe parTs and bleeding from The vaginal orifice which proves The violenT sexual assaulT on The prosecuTrix by appellanT Sonjay as also The facf ThaT before commiTTing rape The. prosecuTrix was undressed by The appellanTs. IT is perTinenT To noTe ThaT in cross- examinaTion a specific leading quesTion was asked by The defence ThaT Ajay, broTher of The appellanT Sonjay had scolded The appellanTs in The foresT as To why had They broughT The prosecuTrix in The foresT. To reiTeraTe, The enTire cross-examinaTion of The prosecuTr-ix in a manner lends supporT To The inference ThaT rape was commiTTed on The prosecuTrix by appellanT Sanjy wiTh The acTive assisTance of co- appellanT—Anil Ci? Mangu and Manoj. IT is Thus esTablished ThaT The appeilanTs had Taken The prosecuTrix To The foresT in a Jeep wiTh The inTenTion of subjecTing her To sexual inTercourse and The appellanT Anil @ Mangu had held The prosecuTrix while she was being ravished by appellanT Sanjay. Even Though There is no specific allega'non/injhe, *esi'imony of fhe prasecu'rrix fhu‘t The appeHcm‘r Manoj had held her whiie she was being ravished by +he appellanT—Sanjay, ye'f fhe very fat? fhuf We appellanf Manoj and Anil ,@ Mangu wem‘ wi‘rh The prosecufrix To fhe fares? in a Jeep driven by appeilon‘r Sanjay and in presénce sf appeHanT Manaj, The appeHan‘r Anil @ Mangu held fhe prasécufrix dearly goes 1'0 show Tha'f a“ fhe appellams were in fac‘i’ acfing‘ in fur‘i’herance of *heir comm9n infenTion of commif'l'ing rape on fhe pirosecufrix, and Therefore, under Expiuna'fion - 1 1’0 éJb-sec'ricn (2) 9f «Secfion 376»I.P.C. a“ rhe appellarrrs she“ be deemed 1’0 have commii'fed gang ra‘pe on The prosecu‘rrix wH‘hin %e‘meaning of section 376 (2) (g) I.P‘C. Ihe acfive par'r faken by The appellan'rs Anil @ Mangu and Manoj while The prosecuh‘ix was being ravished by The appellan'? Sunjay can very safely be inferred while sif'fing i‘he +esiim0ny of 'i’he prosecuh‘ix in para 8 wi'ih care and cau‘iion so as f0 separa‘re 'I’he grains cf iruih. 17. The can'fenfion af Shri Abhay Tiwari, iearned counsel for 'lhe appellan'ls fha'l The appellanl' Sanjay had commifl’ed sexual in‘i'ercourse wh‘h The prosecuTrix wiTh her cansenT is unaccepTable. Her TesTimony dearly shows ThaT she had raised objecTion To her being Taken To The foresT by The appellanTs. The TesTimony of Mahesh P.W.5 also shows ThaT The appellanTs had ThreaTened To kill her, if she resisTed. Medical evidence of Dr.5mT. SuchiTa James P.W.8 also shows The presence of exTernal injuries as also The presence of bleeding from The vaginal orifice and pain in her privaTe parTs. These facTors clearly rule ouT consenT of The prosecuTrix. G 18. The facT ThaT The prosecuTrix did noT narraTe The incidenT To The occupanTs of The Jeep in which she reTuned home as also The facT ThaT she did noT narraTe The incidenT immediaTely on reTurning home i / 7 ”7,7 J5 ‘i’o he!“ sismr-in-law does no”? m any manner rei‘lder The fesfimony 0f The proseouTrix unworThy of any crediT. IT cannoT be ruled ouT ThaT in a 'h'adH'iGn bound conservafive sociz‘i'y, The prosecu'h-ix To hide her shame, would n01“ have gmhered courage +0 disciose +he incidem’ 'i'o her sis+er-in-§aw Champa P.W.6 immediu+ely on ramming home. The very fee? 'fha‘i' +he erosecu'h'ix nurra‘l'ed fhe inc§den+ 1'0 her on The hex-f morning and accompanied her 'ro [odge =fhe FLLR. aT P.5. Bhai’ramgarh cieariy rulee ou'r fhe consem‘ of fhe prosecu’rrix in The gang rape on her by appelian'f Sanjay wrrh The aSSIs'rance of 1he co— appellanfs who were achng m furfherance of 'i'heir common desgn No‘Fhmg has emerged In