The prosecution must prove guilt beyond reasonable doubt, especially when the primary witness turns hostile, and reliance on inconsistent testimony and improperly handled DNA evidence is insufficient for conviction.

JUDGMENT :

G.A. SANAP, J.

1 All these appeals arise out of the judgment and order dated 30.09.2011 passed by the learned Additional Sessions Judge, Wardha (for short, ‘the learned Judge’) and therefore, the appeals are being disposed of by common judgment. The particulars with regard to the accused numbers, appeal numbers and sentence can be tabulated as follows:

The accused Nos. 1 to 4, 7 and 8 are also sentenced to suffer rigorous imprisonment for five (5) years and to pay a fine of Rs.5000/- each and in default of payment of fine further sentenced to suffer rigorous imprisonment for one (1) year each for the offence punishable under Section 366 read with Section 34 of the Indian Penal Code (for short ‘the IPC’). The accused No.7 is further sentenced to suffer simple imprisonment for one (1) month for the offence punishable under Section 341 of the Indian Penal Code.

2 Background facts:

PW-1 (hereinafter referred to as ‘the prosecutrix’)is the informant. The case of the prosecution, which can be unfolded from the report lodged by the prosecutrix and other materials, is that on 24.06.2010 she was not feeling well and therefore, she went to Government Hospital Allipur. On that day, the hospital was closed and therefore, in order to come back to her village Pauni, she was waiting near Yeshwant School Allipur for auto-rickshaw. At about 4:00 p.m., accused No. 7 Shankar Tadas came to the said spot with his auto- rickshaw. Four passengers were already sitting in his auto. The prosecutrix boarded the said auto. Accused No. 7 Shankar Tadas did not stop the auto-rickshaw at village Pauni and took the prosecutrix to Shirasgaon. On the bridge, he allowed the remaining four passengers to alight from the auto-rickshaw. Accused No.7 then took the prosecutrix in his auto-rickshaw to Kanchangaon bus-stop. Accused No.4 Sunil Warghane was at Kanchangaon bus-stop with his auto-rickshaw “Monalika”. It is stated that at the said place accused No.7 Shankar Tadas forcibly made the prosecutrix to sit in the said auto-rickshaw of accused No. 4 Sunil Warghane. Accused No. 7 alongwith another accused No. 3 Ganesh Rade and accused No. 4 sat with the prosecutrix. Accused No. 2 Prashant Satone was driving said auto-rickshaw. Accused No.1 Chandu Chambhare and accused No. 8 Ganesh Dhage proceeded ahead of the auto- rickshaw on the motorcycle. They proceeded towards Kanchangaon. The auto-rickshaw followed them. They took the prosecutrix near a nallah situated between village Shirud and Yeranwadi road via Allipur. They instructed the prosecutrix to get down from the auto-rickshaw but she refused. Thereupon, accused No.1 assaulted and dragged her in the nallah. Accused No.1 forcibly removed her clothes and committed sexual intercourse with the prosecutrix. He used condom. It is stated that thereafter, accused No.2 Prashant Satone, accused No.3-Ganesh Rade, accused No.4-Sunil Warghane and accused No.7 Shankar Tadas one after another, by using condom, committed sexual intercourse with the prosecutrix. In the meantime, accused No. 5 Khushal Masulkar came in his auto-rickshaw alongwith accused No. 6 Pravin Surkar. Accused Nos.5 & 6 also committed sexual intercourse with the prosecutrix. Thereafter, at about 9:00 p.m., they brought the prosecutrix at Bhagwa Phata in the auto-rickshaw and dropped her there. Then, they fled from the spot.

3 It was a night tim