JUDGMENT:

S.B. Sinha, J. -- Appellants herein, who are six in number, have preferred these appeals from a common judgment and order dated 6.3.2003 passed by the High Court of Judicature at Madras.

2. Appellants were convicted under Section 376(2)(g) of the Indian Penal Code (hereinafter referred to as 'the Code') and sentenced to undergo rigorous imprisonment for 10 years. 3.

3. The incident took place on 20.11.1994. The victim was working as a Coolie. She was married and had two children. She was returning to her home on a bicycle with her brother, Palanisamy at about 10.00 pm after watching a movie. Appellants herein allegedly joining hands with each other, chased them. They were riding on their own bicycles. They dashed with the bicycle of the Palanisamy. Palanisamy and the victim fell on the ground. Allegedly, victim was asked to enjoy herself. Palanisamy, when questioned about the said conduct on the part of accused No.1 Babu, who was known to the victim as a mason, was slapped by the accused No.1. He ran away out of fear.

4. The victim was taken at a nearby place and accused No.2 to 4 and 6, allegedly raped her one after the other. She lost her consciousness.

5. Palanisamy went to the village and brought some people with him. They found the victim lying naked in an unconscious condition. PW8, Chinnadurai, and others poured water on her face. She was taken home after she regained her consciousness.

6. She regained her composure in the evening. They came to the Police Station and lodged the First Information Report at about 7.00 pm on 21.11.1994. She was medically examined at about 0720 hours on 22.11.1994. No injury on her person, however, was found. No injury on her private part was also noticed. In the FIR, accused Nos.1 to 4 were named. Accused Nos.5 and 6 were not named. It was said to be a moonlit night. All the accused, however, were not put on the Test Identification Parade. On completion of investigation, they were charge sheeted and put on trial.

7. Admittedly, no charge under Section 376(2)(g) was framed.

8. The allegations made against them in the FIR read as under :

"On the moonlight, I identify one person is Babu who is working as a mason along with another three persons were standing along with backside of cycle.

All the accused were laughed at me when I was standing at Kariampalayam bus stop to go for work. I saw them. Babu called me to come with him. Immediately my brother asked about this, suddenly Babu slapped him. Then Babu rushed with tears in the said cycle. All the three persons rushed me to the damaged wall building and place me near the tank. I tried to escape from them. The three persons pushed me with force and closed the mouth with my saree. I cannot do anything. I saw all the faces in the moon light. Babu called one Thangavely and told him that to go with me. Thangavelu placed on me without dress and raped me. Next Thangavely sent one Sakthi. He also raped me. Next Babu called one Murugesan and sent to me. He also raped me. Then I felt unconscious. I do not know about the further matter. When I awakened, the village people, my brother, my uncle Chinnan and others poured water on my face and help me to get up. I felt serious pain and am crying and weeping. My brother helped me to reach my house. I am not able to get up since I lay down in the bed. In the evening I feel better. Immediately I and my brother come to the police station and explain the matter."

9. Before the learned trial Judge 10 witnesses were examined, material amongst them is the victim herself (PW-6) and her brother, Palanisamy (PW-7). Before the learned Trial Judge, the victim did not identify all the accused. She identified accused No.1, 2 and 3. The names of accused Nos.5 and