The prosecution failed to prove charges of gang rape beyond a reasonable doubt due to inconsistent testimony and lack of corroborating evidence, emphasizing the necessity for proper identification procedures.

Judgment :

S.S. Mishra, J.

1. The present criminal appeal is directed against the judgment dated 26.07.1999 passed by the learned Additional Sessions Judge, Kendrapara in S.T. Case No.5/25 of 1997, arising out of G.R. case No. 794 of 1996, whereby the present appellants (accused Nos. 1 and 3) were convicted under Section 376(2)(g) IPC (gang rape) and sentenced to undergo rigorous imprisonment for seven years each, while being acquitted of the charge under Section 379 IPC.

2. The Appellant No.2 has already expired as per the order dated 22.11.2022. The appeal qua him stood abated in the absence of any application U/S. 394 Cr.P.C. by his Legal Representatives or next friend.

3. Heard Mr. Debi Prasad Pattnaik, learned counsel, for the appellants and Mrs. Sarita Moharana, learned Additional Standing Counsel for the State.

4. The prosecution case in brief is that on 1.08.1996 at about 8–9 p.m., the victim girl (P.W.4), then aged about 17 years and physically handicapped, while returning home, halted at a hotel verandah at village Badapalagada due to rain. It is alleged that the victim was served food and later confined in a hotel room. Around midnight, the present appellants, along with co-accused Pradipta (since deceased), entered the room and, in turn, committed rape upon the victim against her will. After the occurrence, while she was being forced out through a window, some villagers surrounded her, and the police arrived, upon which she lodged a First Information Report. It is also alleged that her wristwatch had been taken away by one of the accused.

5. On investigation, the victim was medically examined; her statement under Section 164 Cr.P.C. was recorded; the accused were also medically examined. Upon completion of investigation, charge- sheet was filed for offences under Sections 376(2)(g)/379 I.P.C. On the denial stance of the accused, they were put to trial.

6. The prosecution examined five witnesses. The victim (P.W.4) supported the prosecution in her examination-in-chief on 01.02.1999, implicating the accused, but on the next day during further cross- examination she resiled, attributing her volte face to pressure from her brother-in-law Murali Das. She was declared hostile.

7. The learned trial Court, relying on her initial evidence-in-chief, her statement recorded under Section 164 Cr.P.C. and the medical evidence of P.W.3 indicating multiple abrasions and bruises around the vagina consistent with sexual assault, came to the conclusion that despite hostility in part, the testimony of the prosecutrix, corroborated by medical evidence, proved the charge under Section 376(2)(g) IPC. The charge under Section 379 IPC was not established. Accordingly, the appellants were convicted and sentenced as stated above. The relevant portion of the judgment under challenge is extracted herein below:-

“19. The evidence of the prosecutrix recorded by this court on 1.2.99 proves the prosecution case against the accused persons. Besides that the medical evidence also corroborates that there were injuries on the vagina of the prosecutrix which can be caused by sexual assault. Hence the evidence of the prosectrix (p.w.4) as stated in her evidence-in-chief, before being declared hostile by the prosecution and after her cross-examination by the defence, is corroborated by the medical evidence (Ext.4) proved by p.w.3 that the accused persons committed rape on the prosecutrix, a girl of 17 years and caused injuries to her vagina.

20. Coupled to the above circumstance, Ext.11 is the statement of the prosecutrix recorded by t