IMPORTANT POINT
In a case of rape it is not discretion with the court whether to draw presumption or not convicted in section 114A of the Evidence Act.

JUDGMENT

S.K. Chawla, J. - Both the appellants, who Ire a boroginals being Gonds, have been convicted I by Sessions Judge Mandla of the offence under section 376 (2)(g) of the Indian Penal Code with COll1mitting gang rape on a gill of their own village and community named Shantibai (P.W. 1) and have been sentenced to R1 for 10 years and a fine of Rs. 250/- each, in default to further imprisonment of three months. The learned Sessions Judge has committed to direct if the imprisonment in default, would be simple or rigorous.

2. The prosecution story briefly stated was that on 5.2.1986 Shantibai (P.W. 1), an unmarried Gond girl, aged 16 years or little more, had gone in the company of two women named Kamlo and Mantibai to collect fuel wood in the forest of adjoining village. In noon time at about 1.30 p.m. the two appellants came in the forest. They made the two accompanying women to leave helping them to place load of fuel wood on their heads. The two appellants then committed rape turn by turn on Shantibai, the one holding down the girl when the other raped. Gorelal (P.W. 3) happened to spot the appellants ravishing the girl and he raised out-cries. The appellants threatened him with dire consequence if spoke about the incident to anybody.

3. The learned Sessions Judge held the prosecution story to be established on the evidence of prosecutrix Shantibai (P.W. 1). He pressed into service the presumption contained in Section 114-A of the Evidence Act to believe the evidence of the prosecutrix that she was not a consenting party. The evidence of Basorilal (P.W. 5), a Panch of the village Panchayat, who deposed that both the appellants had made extra judicial confession in the Panchayat admitting their guilt, was also relied upon.

4. On being taken through the entire prosecution evidence this Court is clearly of the view that the prosecution story about gang rape was so thoroughly improbable and unnatural that it was improper to convict the appellants in the manner done by the trial Court. First of all, there was the circumstance that Shantibai (P.W. 1) made a report of the alleged offence nine days after its alleged commission. The offence, as may be recalled, was alleged to have been committed on 5.2.1986 in day time at 1.30 p.m. while the report, Ex. P.1 thereof was made on 14.2.1986 at 4.30 p.m. Shantibai (P.W. 1) explained that a village Panchayat was convened at the instance of her father on the day following the date of the incident i.e. on 6.2.1986. In that Panchayat father of appellant No.1 Shatrughan by name Dadulal had agreed to get his son married to Shantibai. Dadulal also performed ceremony of Phaldan in that connection in the said Panchayat. Shantibai (P.W.1) added that if appellant No.1 Shatrughan had married her she would not have reported about the alleged incident at all. However, on the very next day i.e. on 7 .2.1986 the father of appellant No. 1 openly declined to get his son married to the prosecutrix. It was for this reason that report about the incident was made by her. Even in that situation why was the report delayed by another seven days, since the father of appellant No.1 had admittedly declined to get his son married on 7.2.1986. There is absolutely no explanation for this delay of seven days and the possibility that some sort of incident was twisted to give it a shape of gang-rape in the report, Ex. P.1, cannot reasonably be discounted.

5. The girl Shantibai (P.W. 1) went on to admit that she was eager to be married to appellant No.1 Shatrughan and hence was not willing to make any report. She admitted that because she was taken by her parents to the police, she had to report This would indicate that she unwillingly made a report on pressure of her parents.

6. It has come in the evidence that appellant No. 1 Shatrughan and the girl Shantibai (P.W. 1) arc neighbours. It has also appeared in the evidence that father of appellant No.1 is maternal uncle of the girl. The girl Shantibai (P.W. 1) admitted i