Oral Judgment:

1. The appellants were charge-sheeted and prosecuted for commission of offence punishable under section 376(2)(g) of the Indian Penal Code ( in short “IPC”) for having committed rape upon prosecutrix on 27.1.2004 at about 00.20 hours. By judgment and order dated 11.9.2008 in Sessions Trial No.11/2004, the learned Special Judge, Pandharakwada Dist. Yavatmal, found them guilty and imposed punishment for offence of rape awarding jail sentences for ten years each and fine in the sum of Rs. 1000/-, in default, to undergo further imprisonment for three months to each of the appellants for offences of house trespass, punishable under section 450, for period of thee years and fine in the sum of Rs. 1000/- each, and further imprisonment of three months.

2. The said judgment and order is under challenge by means of these Appeals.

3. The prosecution case briefly stated is : On 27.1.2004 at about 8.00 p.m. the prosecutrix-Sujata took her meals was alone in house at Akoli (Khurd), Taluqa Kelapur ;while her husband Kapil had gone to Nagpur. At about 12.00 midnight, as she heard a knock on the door she got up and saw accused coming from outside the door. Accused Ramamurti, Praful and Sheikh Javed Sk.Kurban R/o Akoli were playing carrom in the locality and, therefore, were known to the prosecutrix. They had asked prosecutrix to open the door and also asked whether Kapil (husband of prosecutrix) was in the house. Prosecutrix told them that her husband was not in the home and she would not open the door. Preosecutrix went again to sleep on the cot. After about 20 minutes, those three accused persons had trespassed in the house form the rooftop removing the Mangalore tiles on the house. Accused Praful Padelwar woke her up by his hand and by another hand pressed her mouth so that she should not raise shouts; while accused Sk. Javed opened buttons of her blouse. Ramamurti caught her hands and legs. They did not allow the prosecutrix to move or raise shouts. Sk. Javed removed her saree, lifted her petticoat and removed her nicker. He forcibly pressed her breasts and committed sexual intercourse. Then he opened the door and went outside. Thereafter, Ramamurthi Bominwar committed forcible sexual intercourse with her in same manner. Lastly, Praful pressed her mouth and did not allow prosecutrix to shout. Praful had helped other two to commit sexual intercourse through he himself did not commit sexual intercourse. On 28.1.2004 at about 8.00 a.m., the prosecutrix narrated the incident o her nighbour-Gulabrao Bhanarkar who advised prosecutrix to wait till arrival of her husband from Nagpur and then to lodge a complaint at Police Station. Thus, after arrival of her husband, she narrated the whole incident to him and then both of them approached the Police Station. Her complaint gave rise to Crime No. 16/2004 registered at Pandharkwada Police Station on 28.1.2004 at 23.00 hours. The prosecutrix-Sujata (PW 1) deposed before the Court about the incident and oral report and FIR (Exhs. 34 and 35). FIR was recorded by Deelip Tidke (PW 5). Learned APP submitted that her evidence as above, remained unshaken in material particulars so as to identify the accused since prior to the incident, as also the incident of gang-rape. According to prosecutrix, her hands and legs were caught and her mouth was gagged and, therefore, she could not resist. She had also suffered injury on her private part and her chests (breasts) were swollen. PW 2-Kapil (husband of prosecutrix) had returned to Akoli on 28.1.2004 when prosecutrix narrated the incident to him. One Gajanan Madikuntwar (Accused No.4), {maternal uncle of the accused Ramamurthi} tried to bribe the witness Kapil in order to prevent lodging of FIR. PW 3 Siddhartha is a panch witness about Panchnama Exh.38; seizure of nicker; bedsheet, shawl; petticoat. Spot Panchnama (Exh.39) mentions that three tiles of roof above hearth near northern wall, was seen removed from which place accused trespasse