JUDGMENT - D.B. BHOSALE, J.:---The four appellants/original accused Nos. 2 to 5 in three connected appeals and Suo Moto Application No. 1 of 1998, viz. (1) Rajesh Namdeo Mhatre, (2) Dilip Mahadeo Surve, (3) Ashok Prafulla Naik, and (4) Chandrakant Ganpat Patre, were convicted by the Additional Sessions Judge, Greater Bombay, in Sessions Case No. 860 of 1994. The appellants were originally charged and tried for the offences under sections 376(2)(g), 341 read with section 34, section 506 r/w section 34 and section 366 r/w section 34 of the I.P.C. along with three other accused, viz. original accused Nos. 1, 6 and 7, who were acquitted of all the aforesaid offences. The appellants alleged to have committed rape on Suman Bhimrao Banpate during the intervening night of 22nd August, 1993 and 23rd August, 1993 between 12.15 a.m. and 2.30 a.m. on the terrace of the building at Koyana colony situate, within the jurisdiction of R.C.F. Police Station.

2. The appellants were sentenced to undergo R.I. for seven years for the offence punishable under section 376(2)(g) of the I.P.C. and to pay a fine of Rs. 500/- each, indefault to further undergo R.I. for one year and for the offence punishable under section 341 of the I.P.C., they were sentenced to suffer 3 years R.I. The accused No. 4, in addition, was sentenced to suffer R.I. for three years and to pay a fine of Rs. 200/-, in default to further undergo one week's R.I. for the offence under section 363 of the I.P.C. All sentences imposed against the appellants/accused were to run concurrently.

3. This Court, while admitting the appeals on 16th February, 1998, had issued a suo motu notice of enhancement to all the accused, probably, because the learned Additional Sessions Judge while imposing the sentence under section 376(2)(g) of the I.P.C. imposed lesser punishment than 10 years without recording adequate and special reasons in the judgment, as required under the proviso to sub-section (2) of section 376 of the I.P.C.

4. Since all the three connected appeals and the suo motu application arise from a common judgment, they were heard together and are being disposed of by this common judgment.

5. We may state, in brief, the prosecution case unfolded during trial. The prosecutrix Suman Bhimrao Banpate, a widow having four children, was working as waiter in Dinus Bar at Vashi Naka. Her duty hours were 6 p.m. to 11.45 p.m. She used to return home by 12 midnight and on her way back to home, pick up her friend Anita, who was also working as waiter in Hardip Bar. On 22nd August, 1993 the prosecutrix, as usual, hired an autoriksha for returning home at 11.45 p.m. When she was proceeding towards Hardip Bar to pick up Anita, her autoriksha was intercepted by two persons. These two persons were subsequently identified as the appellant No. 3 and original accused No. 1. The two persons got into the autoriksha, they slapped the driver, sat next to her and asked the driver to proceed towards Koyana colony. The autoriksha was taken near one building in Koyana colony. The driver of the autoriksha was threatened at the point of knife and was asked to leave the place. The prosecutrix claims to have requested the said two persons to release her and allow her to go home as she was getting late and her children were waiting for her at home. Those two persons did not pay any heed to her request and took her on the terrace of the building where five other persons were already there and who they were consuming beer. These seven persons, were subsequently identified as original accused Nos. 1 to 7. It is alleged that the four appellants out of the seven persons committed rape on her. Around 2.30 a.m. the police went on the terrace of the building who were on patrolling duty and at the relevant time were in search of one accused by name Parmar. The prosecutrix narrated the incident to P.W. 3, Tulshiram Udemale, a Police Constable. All the seven persons on the terrace, including the present appellants/accused, were ar

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