IMPORTANT POINTS
Conviction can be based on sole evidence of the prosecutrix.
In a case of gang rape consent will be presumed to be absent.

Judgment :-

Dr. B.S. Chauhan, J.

1. These appeals have been preferred against the impugned judgment and order dated 2.9.2009 passed by the High Court of Jharkhand at Ranchi in Criminal Appeal Nos. 316 and 218 of 2002, by which the Court has affirmed the judgment and order of the trial court dated 22.5.2002 passed in GR. No. 151 of 1999, by which the appellants had been convicted for the offence punishable under Section 376(2)(g) of Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’). They were sentenced to undergo RI for a period of 10 years and further, to pay a fine of Rs.5,000/- each, and in default of the same, to further undergo RI for a period of 6 months. However, both the appellants were acquitted of charges punishable under Sections 3(1)(xii) and 3(2)(v) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

2. Facts and circumstances giving rise to these appeals are that:

A. Aliva Kongari (PW.10) – the prosecutrix at about 10 a.m. on 13.6.1999 came to the district headquarters Simdega from her village Jhingur Pani Toli. There she met her friends Kiran and Shashi and alongwith them she went to enjoy a movie at the cinema hall. Thereafter, she proceeded towards the vegetable market. Here, she was followed by two boys (appellants) who told her to accompany them. Though, she refused to go with them, they caught hold of her hands and took her forcibly to a school situated in Bhathi Toli and there she was subjected to rape by both of them.

B. Subsequently, other boys also came there and some of them also raped her. However, she was tired and became unconscious. She regained her consciousness in the morning and nearby, she saw an old lady. One of the appellants, was also there just outside the school. On enquiring, the old lady told her that his name was Iqbal.

C. The prosecutrix went to the police station and lodged a complaint. Her statement was recorded. Her clothes, particularly her petticoat was taken by the police and she was taken to the hospital for medical examination. In view of the aforesaid complaint, investigation started and the appellants were arrested after 2-3 days.

D. After the conclusion of the investigation, the chargesheet was filed against the accused appellants. They pleaded not guilty and thus, were put to trial.

E. During the trial, most of the witnesses turned hostile. However, the trial court vide impugned judgment and order dated 22.5.2002 convicted and sentenced the appellants as referred to hereinbefore. Their appeals have also been dismissed by the High Court vide impugned judgment and order dated 2.9.2009.

Hence, these appeals.

3. Ms. Kumud Lata Das, learned counsel appearing for the appellants has submitted that the version of the prosecutrix is not in consonance with medical evidence and the conduct of the prosecutrix was very unnatural. Even the father of the prosecutrix who had been examined as a prosecution witness turned hostile and did not support the case of the prosecution. Therefore, the version of the prosecutrix that she had been taken from the market by the appellants to the school building where she was subjected to rape, is very unlikely as these are public places where someone would have come to her rescue. Furthermore, in spite of the fact that the school, where she was subjected to rape had two rooms she was raped in a verandah, this too seems unlikely. The prosecution failed to examine the material witnesses particularly the old lady who disclosed the name of one of the appellants as Iqbal to the prosecutrix. No Test Identification Parade was conducted. Even the evidence of Surendra Kumar (PW.9) is far from satisfactory. Due to the aforementioned contentions, benefit of doubt should be given to the appellants. Therefore, the appeals deserve to be allowed.

4. Mr. Jayesh Gaurav, learned counsel appearing on behalf of the State, has opposed the appeal as there are concurrent findings recorded by the courts below. The test identification parade c