Madan B. Lokur, J.

1. There are two Appellants before us, namely, Dharmendra Gogoi and Chakra Bora. They are aggrieved by the conviction and sentence dated 6.11.2003 awarded by the Addl. Sessions Judge (Ad-hoc), Jorhat (FTC) in Sessions Case No. 11(J-J) 2000.

2. A First Information Report was lodged by Tarun Borah on 20.2.1996 to the effect that on 19.2.1996 at about 11 PM, three unknown persons entered his house and took away gold ornaments and cash of Rs. 2500/-. The three unknown persons also raped his wife after he was tied up with a gamocha. He had opened the door of his house to these three persons when they showed him lethal weapons from outside the house.

3. The police acted on the FIR and after investigations, charged the two Appellants and one Nirmal Gogoi (now absconding) with having raped the wife of Tarun Borah and thereby committing an offence punishable under Section 376(2)(g) of the Indian Penal Code and also committing theft of gold ornaments and household articles from the residence of Tarun Borah and thereby committing an offence under Section 392 of the Indian Penal Code.

4. The three accused were committed for trial by an order dated 8.2.2000 and when charged by the Addl. Sessions Judge, Jorhat, they pleaded not guilty on 15.3.2001 and claimed trial.

5. The prosecution examined as many as eleven witnesses and the defence did not produce any witness.

6. We have gone through the evidence on record and find that the testimony of P.W. 3, P.W. 4, P.W. 5 and P.W. 11 is of no significant value.

7. P.W. 1 is the Goan Burah (Village Head) and he turned hostile. In his examination in chief, he says that Tarun Borah told him that three persons had misbehaved with his wife and Chakra Bora (one of the Appellants) had confessed his guilt before him. Chakra Bora had also taken the police to his house where he handed over some of the money stolen from the house of Tarun Borah. In his cross-examination, he reiterated that Chakra Bora has confessed his guilt but he named several other persons also who were present when the wife of Tarun Borah was raped. It is difficult to place reliance on the testimony of this witness since he has said much more than what was actually said even in the FIR and on the crucial aspect of the rape of Tarun Borah's wife, he really has nothing to say.

8. The most important witness of course is the prosecutrix who entered the witness box as P.W. 2. In her testimony, she says that she knows Chakra Bora and recognized the other two assailants but does not know their names. She identified Dharmendra Gogoi in Court during the course of her testimony, Nirmal Gogoi having been declared an absconder.

9. The prosecutrix says that on 19.2.1996 around 10 P.M., she was preparing to go to sleep after having dinner. At that time, someone flashed a torch and asked her and her husband to open the door and threatened to kill them if they did not do so. In the circumstances, her husband Tarun Borah opened the door of the house and the three accused persons entered the house and took her husband to a room and tied him up with a gamocha. They then opened the godrej almirah and took some household articles including jewellery and cash of about Rs. 2500/-. The accused then dragged her to the office room of the house where they tied her up. Thereafter, Dharmendra Gogoi and Chakra Bora raped her and while Nirmal Gogoi was preparing to rape her, they heard some voices outside the house of people returning from a circus in the village and then the accused ran away. At that time, the prosecutrix was about three months pregnant and did not offer much resistance to the accused persons because she was afraid of the safety of the foetus in her womb and because the accused were armed with daggers. The accused were carrying torches and during the process, she saw and recognised Chakra Bora who even put off his jacket before raping her and he fled without taking his jacket, which was later seized.

10. The prosecutrix further says t