IMPORTANT POINT
Conviction cannot be based on sole evidence of prosecutrix, if not reliable.

Judgment :-

Fakkir Mohamed Ibrahim Kalifulla, J.

1. These two appeals at the instance of the accused arise out of the common judgment dated 27.01.2009. Hence, we will dispose them of by this common judgment. Both the appellants were convicted for the offence of gang rape by the trial Court and were sentenced to undergo rigorous imprisonment for 10 years each with a fine of Rs. 3,000/-each, in default to undergo further rigorous imprisonment for one year each under Section 376 (2)(g), IPC.

2. The case of the prosecution was that on 15.08.2001 in the night at about 1.30 a.m. the prosecutrix (PW-4) aged about 34 years was in her sister’s house, namely, Seema, that she heard the noise of knocking at the door, that the minor daughter of her sister, namely, Noju (PW-10), opened the door and both the accused persons entered and the accused Rai Sandeep @ Deepu told the prosecutrix that he wanted to have sexual intercourse with her. According to the prosecutrix (PW-4), she rebuked their demand stating that she was not of that type and that the appellants threatened her, that in the meantime one Jitender (PW-11), minor son of her sister Seema appeared and both the minor children asked the appellants to go out of their house but the appellants pushed the minor children into a room and bolted the door of the room from outside. The further allegation of the prosecutrix (PW-4) was that the appellant-Rai Sandeep @ Deepu in Criminal Appeal No.2486 of 2009 made her lie down in the Verandah outside the room and had forcible sexual intercourse with her while his companion, the appellant in Criminal Appeal No.2487 of 2009 was guarding the main door of the house. It was further alleged that after the appellant in Criminal Appeal No.2486 of 2009 had forcible intercourse with the prosecutrix (PW-4), he took the turn of guarding the door while his companion, the appellant in Criminal Appeal No.2487 of 2009 also had forcible sexual intercourse with her, that both the appellants wiped their private parts with a red colour socks which was lying in the Verandah and while leaving the place of occurrence, they took away a gold chain and a wrist watch which was lying near the TV inside the room. The appellants stated to have left the place by bolting the main door from outside. According to the prosecutrix (PW-4), since it was dark in the night she did not venture to go out at that time and in the morning she asked her nephew Jitender (PW-11) to get out of the house from roof top and open the door which was bolted from outside. Thereafter, she is stated to have reported the incident to the police.

3. Based on the investigation, the appellants were arrested and thereafter the gold chain and the wrist watch was recovered at the instance of the appellant in Criminal Appeal No.2486 of 2009 and subsequently on his disclosure the appellant in Criminal Appeal No.2487 of 2009 was also arrested. The prosecutrix (PW-4) and the appellants were stated to have been medically examined, that the appellant in Criminal Appeal No.2487 of 2009 refused to participate in the test identification parade, that FSL report of Exhibits were also obtained and the charge sheet was filed for the offence of gang rape. Seventeen witnesses were examined on the side of the prosecution which included the prosecutrix (PW-4) as well as her niece Noju and nephew Jitender, minor children of prosecutrix’s sister Seema who were examined as PWs-10 and 11. PWs 1 and 5 were the doctors who testified the medical report of the prosecutrix (PW-4). PWs2, 3 and 13 were the doctors who deposed about the medical report of both the appellants. SI Rajiv Shah (PW-14) was the investigating officer. None were examined on the side of the appellants. The appellants have been convicted as stated above and the said conviction having been confirmed by the order impugned in this appeal, the appellants are before us.

4. Learned counsel appearing for the appellant in Criminal Appeal No.2486 of 2009 submitted that while