IMPORTANT POINTS
(1) Conviction cannot be based solely on statements made by accused under sub-section (1) of Section 313 of Cr.P.C.
(B) Gang rape – Enhancement in sentence is not justified many years after incident.

FACTUAL ASPECTS

1. The respondents in Criminal Appeal No.2567 of 2024 have been convicted by the High Court of Himachal Pradesh at Shimla by the impugned judgment and order dated 2nd March 2017 for the offence punishable under clause (g) of sub-section (2) of Section 376 of the Indian Penal Code, 1860 (for short, ‘the IPC’). They were sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.50,000/- each. They were sentenced to undergo rigorous imprisonment for six months on default of payment of fine. The fine amount, if deposited, was ordered to be paid to the prosecutrix.

2. PW-5 is the prosecutrix. The alleged incident is of 8th July 1989. Initially, the accused were prosecuted for the offences punishable under Section 376, read with Section 34 of the IPC. Six accused were tried before the Sessions Court, namely, Raghubir Singh (Raghubir), Vijay Kumar (Vijay), Ravi Prakash (Ravi), Anil Kumar alias Bittu (Anil), Hari Ram (Hari) and Sunil Kumar (Sunil). The Trial Court acquitted the accused on the ground that in the absence of any corroborating evidence of any struggle on the part of the prosecutrix or any corroborating injury on the person of the accused, the defence of the accused that the sexual intercourse was with the consent, cannot be ruled out. The appellant–the State of Himachal Pradesh, appealed against the order of acquittal. By the order dated 28th March 2008, the High Court set aside the judgment of the Sessions Court and remanded the case to the Sessions Court with a direction to try the accused for the offence of gang rape. After the order of remand, the case was tried only against five accused as the accused Anil had died. The prosecution adopted the evidence recorded before remand, and even the accused adopted their cross-examination. By the judgment and order dated 24th September 2008, the Sessions Court again passed an order of acquittal. By the impugned judgment and order, the High Court interfered in an appeal preferred by the State. It converted the acquittal of the accused into a conviction for the offence punishable under Section 376(2)(g) of the IPC. Regarding the sentence, the High Court held that there were adequate and special reasons for imposing a sentence of imprisonment for a term of less than ten years. The said power was exercised by the High Court in terms of the proviso to sub-section (2) of Section 376 of the IPC as it existed on the statute book before Section 376 was substituted by Act No.13 of 2013.

3. Criminal Appeal No.2567 of 2024 has been preferred by the State of Himachal Pradesh being aggrieved by that part of the impugned judgment, by which the accused were let off on the sentence of imprisonment for three years which is less than the minimum sentence of ten years as provided under Section 376(2), which was applicable on the date on which the alleged act of offence was committed. Criminal Appeal No.2568 of 2024 has been preferred by accused Vijay for challenging his conviction.

SUBMISSIONS

4. The learned counsel appearing for accused-Vijay, in support of the appeal, urged that on the same evidence, there are two judgments of acquittal in favour of the accused. He submitted that even in the appeal against the first order of acquittal, the High Court did not convert the order of acquittal into conviction and passed an order of remand. He submitted that the finding recorded by the High Court was that on the date of occurrence of the alleged offence, the prosecutrix was more than sixteen years old. Section 375 of the IPC, as was applicable on the relevant date, provided that consensual sexual intercourse with a woman who was more than sixteen years old was not an offence. He invited our attention to the finding recorded in the impugned judgment by the High Court. He submitted that the High Court held that the prosecutrix willingly accompanied accused Vijay, who was sitting beside her in the video parlour where the prosecutrix was watching a movie. He pointed out