IMPORTANT POINT
Conviction for offence of gang rape based solely on evidence of prosecutrix held unsustainable when there are certain features of the evidence of the prosecutrix for suspecting her case.

JUDGMENT

B.P. Singh, J.-In those five appeals by special leave the five appellants have impugned the common judgment and order of the High Court of Himachal Pradesh, Shimla dated August 3, 2001 in Criminal Appeal Nos. 94, 95, 98, 111 and 112 of 1997 whereby the High Court dismissed the appeals preferred by the appellants affirming the judgment and order of the Sessions Judge, Kinnaur Sessions Division, Rampur in Sessions Trial No. 10-R/7 of 1995 dated 20th February, 1997. All the appellants were found guilty of the offences under sections 457, 376 and 380 IPC and were sentenced to two years rigorous imprisonment and a fine of Rs.1000/- each under section 457 IPC; seven years rigorous imprisonment and a fine of Rs. 2000/- each under section 376 IPC and one year rigorous imprisonment and a fine of Rs.1000/- each under section 380 IPC. They were also sentenced to various terms of imprisonment for default in payment of fine. It was further directed that a sum of Rs.10,000/- be paid to the victim, in case fines were recovered.

2. The charge against the appellants mainly is that on February 20, 1994 they forcibly entered the room occupied by the prosecutrix, PW. 1 and each one of them raped her. They also carried away a torch belonging to the prosecutrix.

3. Though the occurrence is said to have taken place on February 20, 1994 at about 12 in the night, the prosecutrix lodged a report at Police Post Moorang on February 26, 1994 at about 11.00 a.m. on the basis of which a formal First Information Report was drawn up at Police Station, Pooh. In her report to the police the prosocutrix Smt. Sanam Devi, PW.1 stated that she was working as a labourer on daily wages in the DGBR. For the last four years she was living separately from her husband who resided at Karsog. After separation from her husband, she resided at Skiba where she had taken one room and a kitchen on rent from one Dharam Singh. On February 20, 1994 at about 12 O clock in the night when she was sleeping in the room some unknown persons knocked at her door. She questioned those persons as to who they were and when they did not respond to her query, she did not open the door. She heard those persons talking to each other and planning to break the glass window and to enter the room. Thereafter inspite of her protest that they should not break the glass window, they forcibly broke the glass window and after opening the latch of the window came inside the room. They asked her to switch on the light to which she responded by saying that there was no light. They then lighted a match-stick, took out her torch kept in the almirah and after putting the cells in the torch they started seeing each other in the torch light. That is how she was able to recognize them. She named four of the persons who entered her room, namely - Ajay Pal, Gopi Chand, Rabindra, and Rajan but she did not know the name of the fifth person. They then switched off the torch and two of them made her lie forcibly on the floor. They took off her salwar and threw it in the room and thereafter two of the boys forcibly raped her. Thereafter she was put on the cot and the three remaining boys also raped her. Since it was dark, she could not see which persons had forcibly put her on the floor and who amongst them had raped her first. After the incident all of them went away through the window and also took away her torch. While going away they also threatened her not to report the matter to anyone. According to the prosecutrix, she remained in the room till the morning and then went to work at 9.00 a.m. She did not report the matter to anyone. She did not come to lodge a report at the police station because there was snow fall and the roads were closed.

4. On the basis of the First Information Report lodged by the prosecutrix, ASI Prem Chand, PW.9 inspected the place of occurrence on 27th February, 1994. He prepared the spot map, seized certain articles such as the clothes of the prosecutrix and a wooden danda lying