The judgment clarified the distinction between individual acts of sexual abuse and gang rape under section 376(2)(g) of the Indian Penal Code, emphasizing the need for evidence of common intention and concerted action for the application of the latter.

JUDGMENT :

Sadhana S. Jadhav, J.

Criminal Appeal No.533 OF 2012 and Criminal Appeal No.556 of 2012 :

1. The appellants in these appeals have impugned the judgment and order dated 5th March 2012 passed by the learned Additional Sessions Judge, Kolhapur in Sessions Case No.42 of 2009. The appellants/accused No. 1 and accused No. 2 are convicted for the offence punishable under section 376(2)(g) of Indian Penal Code 1983 (earlier Act) and sentenced to suffer rigorous imprisonment for seven years each and to pay fine of Rs. 5,000/- each I.d. to undergo simple imprisonment for 3 months. The appellant/accused No. 3 is convicted of the offence punishable under section 376 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 5 years and to pay fine of Rs. 5,000/- I.d. to undergo simple imprisonment for 3 months. Hence, these appeals.

2. Such of the facts necessary for the decision of these appeals are as follows :-

(i) On 16th November 2008, Ms. ‘X’ approached Kodoli Police Station on 22nd November 2008 and lodged a report alleging therein that on 15th November 2008 her parents had scolded her as she used to remain outdoors till late night and therefore, on 15th November 2008 she left her house without informing the family members. When she reached Nagaon Phata, she met Shivraj Jagtap who was acquainted with the family. She requested him to drop her at Kolhapur. Mr. Jagtap had obliged and dropped her at S.T. Terminal at Kolhapur. She had been to the temple to offer prayers. Thereafter, she met one boy viz. Rahul Patil, who proposed marriage with her. She was persuaded to accept the proposal of marriage, which she did. He had taken her to Dilbahar Lodge. Rahul had asked her to be in the company of his friend Tatya and had left their company. His friend Tatya had ravished her against her will. Thereafter, Rahul had also ravished her against her will. He had left the room with a promise that he would return soon. Ms. X waited at the lodge till 7.00 am. She then proceeded to Shiroli and from there to Vadgaon. From there they had been to a Gymkhana where she met Bapu Gaikwad who also ravished her against her will. She was forced to stay in Gym.

(ii) On 22nd November 2008, she was apprehended by the Police. On the basis of the said report Crime No.122 of 2008 was registered against the accused for the offence punishable under section 376(2)(g) r/w 34 of IPC.

(iii) At the trial, the prosecution has examined as many as 9 witnesses to bring home the guilt of the accused.

3. P.W.1 is the victim. According to her, on 15th November 2008 since she had a quarrel with her parents she left the house. Investigation was completed and charge sheet was filed. She has deposed as per her FIR and has proved the contents of the FIR. According to her, the accused no.3 had disclosed his name as Kishor @ Bapu Sathe and that he had a family to look after. Accused no.3 is alleged to have taken the victim near the Kodoli Canal at about 11.00 pm. When she was trying to escape from the clutches of accused no.3 she had sustained injury to her right leg. She was taken to a house which was occupied by a couple Swati and Suresh. She was forced to have sexual intercourse with accused no.3 under threat and coercion. On the very next day, she had escaped from the clutches of accused no.3, approached the police station and lodged a report. She was unable to state her date of birth before the Court. Her date of birth is 26th September 1993 as per School Leaving Certificate.

4. In the cross-examination, the victim has admitted that there was no quarrel between her and her parents. According to her, she had met accused no.3 at Kodoli Phata at about 9.30 pm. There are inherent omissions and contradictions in the evidence of the prosecutrix which are brought to her notice. A question was put to her as to whether she had disclosed before the Police that she met accused No.3 - Sathe at Pargaon Bus Stand and he had taken her to his house where he was staying along with