Vipul M. Pancholi, J.—The instant appeal is filed under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) against the judgment of conviction dated 26.09.2019 and order of sentence dated 30.09.2019, passed by the court of learned Additional District & Sessions Judge-XV, Ara, Bhojpur in Sessions Trial No.423/2018 with Sessions Trial No.30/2019, arising out of Pawna P.S. Case No.05/18, whereby the court has convicted the appellants for the offence punishable under Section 376(D) of the Indian Penal Code and they have been sentenced to undergo imprisonment for life and to pay a fine of Rs.50,000/- (Rs. Fifty Thousand only) each for the offence punishable under Section 376(D) of the Indian Penal Code and in default of payment of fine, the appellants have to undergo S.I. for a period of six months.

Factual Matrix

2. The factual matrix of the present case is as under:—

2.1. The informant/victim has filed written complaint on 27.01.2018 wherein she has stated that on 27.01.2018 at about 09:30 P.M., she went to ease herself near her house. Then, Seth Mahto, Sushil Kumar, Pankaj Kumar and Sanu Kumar brought her to the house of Lalan Choudhary and committed rape upon her one by one and threatened to kill her if she would tell anyone. Any how, she raised alarm and her mother and father came running. Thereafter the accused persons fled away. In the said incident, the informant/victim sustained injury in her hand.

2.2. After registration of the FIR, the Investigating Agency started investigation. During course of investigation, the Investigating Officer recorded the statement of the witnesses, collected the documentary evidence and thereafter filed chargesheet against the appellants.

2.3. As the case was exclusively triable by court of sessions, the learned Magistrate committed the same under Section 209 of the Code to the concerned sessions court where the same was registered as Sessions Trial No.423/2018 with Sessions Trial No.30/2019.

2.4. During course of trial, the prosecution has examined 8 witnesses, namely, PW-1, Om Prakash Pandit, PW-2, Jay Prakash Singh, PW-3, Deena Nath Singh, PW-4, Manoj Singh, PW-5, Dr. Bipin Bihari Sharma, PW-6, Dr. Shalini Sinha, PW-7, Asha Devi and PW-8, Poonam Kumari. The defence has also examined two witnesses, i.e., DW-1, Ram Chhapit Singh and DW- 2, Gorakh Singh. Thereafter further statement of the accused under Section 313 of the Code came to be recorded. After conclusion of the trial, the Trial Court convicted the appellants, as stated hereinabove.

3. Heard Mr. Ravindra Kumar, learned counsel for the appellants and Mr. Sujit Kumar Singh, learned Additional Public Prosecutor for the State.

SUBMISSIONS ON BEHALF OF THE APPELLANTS

4. Mr. Ravindra Kumar, learned counsel appearing for the appellants would mainly contend that there are major contradictions and discrepancies in the deposition of the prosecution witnesses and in fact, the prosecution has failed to prove the case against the appellants beyond reasonable doubt despite which the Trial Court has passed the impugned judgment of conviction and order of sentence. He would further contend that in this case the victim has not been examined by the prosecution as she died after lodging of the FIR. It is also submitted that prosecution has placed reliance upon the deposition given by PW- 1, father of the victim. From his deposition, it is revealed that he was not present at the place of occurrence and he got the information from his wife, i.e., PW-7. It is further submitted that PWs.-2 to 4 have not supported the case of the prosecution and they have turned hostile. Learned counsel for the appellants thereafter submitted that PW-5, the doctor, who had examined the appellants-accused, has specifically deposed that he did not find any abrasion or bruise on penis of the accused persons. He also did not find any spot or scar on penis or surrounding area of body of the accused persons. He has further deposed that he did not