Michael Zothankhuma, J.

Heard Mr. Lalfakawma, Amicus Curiae in Criminal Appeal No. 25 of 2015(J) and Mr. Johny L. Tochhawng, Amicus Curiae in Criminal Appeal No. 26 of 2015(J). Also heard Mrs. Linda L. Fambawl, Additional Public Prosecutor, Mizoram.

2. The two appeals have been filed against the judgment and order dated 24.7.2014 and order dated 31.7.2014 passed by the Additional Sessions Judge, Aizawl in Criminal Trial No. 1068/2011 convicting the appellants under Section 376(2)(g) IPC and sentencing them to undergo Rigorous Imprisonment for 4 (four) years and to pay fine of Rs. 10,000/- each and in default, another R.I for 2 (two) months.

3. The facts of the case in brief is as follows: On 16.5.2011 one prosecutrix of Tuirial Airfield lodged a written FIR at Bawngkawn Police Station to the effect that on 12.5.2011 (Thursday) at around 4:30 to 5:00 pm she had gone to the stream at Tuirial Airfield to take bath. Near the stream Henry and three of his friends were consuming liquor and they pulled her up while she was sitting on the edge of the stream. They removed her clothes and forcibly subjected her to sexual intercourse. On the basis of the said information, Bawngkawn P.S Case No. 149/2011 dated 16.5.2011 u/s 376(2)(f) IPC was registered and investigated into. Upon completion of investigation, having found prima facie case against the accused Lalkrosmawia, Hrangchhawna, Henry L. Muana and Lalremruata for the offence punishable u/s 376(2)(g) IPC, charge sheet was made against them and committed for trial.

4. Out of the four accused persons, the accused Henry L. Muana absconded and the accused Lalremruata could not be traced. Charge under Section 376(2)(g) IPC was framed against the appellants and the prosecution examined six witnesses. The accused persons were examined under Section 313 Cr.P.C. along with two defence witnesses.

5. The Trial Court has held that the evidence taken showed that the prosecutrix was made to wear her clothes by the accused persons as she could not even bathe herself or wear her clothes as the prosecutrix was drunk. Thus, keeping in view Clause fifthly of Section 375 IPC, any consent given by the prosecutrix to have sexual intercourse with the accused persons cannot be regard as consent and in that view of the matter, the Trial Court held that rape had been committed upon the prosecutrix. The Trial Court also held that as the evidence showed that all the accused persons had sexual intercourse with the prosecutrix, the common intention of the accused persons to have sexual intercourse with the prosecutrix, who was incapable of giving consent amounts to gang rape was proved.

6. The Amicus Curiae Mr. Lalfakawma and Mr. Johny L. Tochhawng submit that there was consensual sexual intercourse between the four accused persons (including the appellants) and the prosecutrix. The Amicus Curiae also submits that there has been an unexplained delay of four days in filing the FIR, which vitiates the entire proceedings.

7. Mrs. Linda L. Fambawl, Additional Public Prosecutor submits that the evidence adduced by the prosecutrix and the other prosecution witnesses goes to show that the prosecutrix was drunk at the time of the incident and that the prosecutrix was unable to give consent. She also submits that the four accused persons including the appellants had sexual intercourse with the prosecutrix as is recorded in the evidence on record. The Additional Public Prosecutor submits that in view of the prosecutrix being incapable of giving consent, due to her intoxicated states, the sexual intercourse that occurred between the prosecutrix and the accused persons amounted to rape. The Additional Public Prosecutor also submits that as the evidence record shows that the accused took turns in having sexual intercourse with the prosecutrix, the question of common intention was clearly answered in the infirmity and thus, gang rape was proved.

8. I have heard the learned counsel for the parties and perused the LCRs.

9. The