Page No. 1/38 2026:GAU-AP:544-DB THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) CRIMINAL APPEAL [J] NO. 06[AP]/2023 Raju Sonar, Address : Son of Late Bhim Bhadur Sonar, Resident of Kawri Pathar, P.O./P.S. Gohpur, District – Sonitpur, Assam. Presently lodging at District Jail Jully, Itanagar. ………………Appellant -VERSUS- 1. The State of Arunachal Pradesh, represented by the Public Prosecutor, Arunachal Pradesh. 2. Pura Rilung, Address : Daughter of Pura Grayu, Permanent Resident of Ziro, P.O./P.S. Ziro, District Lower Subansiri, Arunachal Pradesh. ………….Respondents Criminal Appeal (J) no. 28(AP)/2023 Budhey Rai, Son of Late Jairam Rai, Resident of S.P. Colony Hapoli, P.O./P.S. Hapoli, District Lower Subansiri, Arunachal Pradesh, presently lodging at District Jail Jully, Itanagar. ………………Appellant -VERSUS- 1. The State of Arunachal Pradesh, represented by the Public Prosecutor, Arunachal Pradesh. GAHC040014582023 Page No. 2/38 2. ABCD (Victim), Daughter of Pura Grayu, permanent resident of Kodumbara Ziro, P.O./P.S. Hapoli, District Lower Subansiri, Arunachal Pradesh. ……………….Respondents. BEFORE HON’BLE MR. JUSTICE MANISH CHOUDHURY HON’BLE MR. JUSTICE KARDEK ETE Advocates : For the Appellant : Ms. S.V. Darang, Amicus Curiae For the Respondent no. 1 : Ms. T. Jini, Additional Public Prosecutor, A.P. For the Respondent no. 2 : Ms. C. Ering, Legal Aid Counsel Date of Hearing : 28.04.2026 Date of pronouncement of judgment : 02.06.2026 Whether the pronouncement is of the Operative part of the judgment ? : No Whether the full judgment has been Pronounced ? : Yes JUDGMENT & ORDER [Manish Choudhury, J] Both the criminal appeals from Jail are directed against a Judgment dated 08.10.2018 and an Order on Sentence dated 09.11.2018 passed by the Court of learned Special Judge [POCSO], West Sessions Division, Papum Pare District, Arunachal Pradesh [‘the Special Court’, for short] Page No. 3/38 in Sessions Case no. 221/2013 [YPA]. By the Judgment dated 08.10.2018, the Special Court has convicted both the accused- appellants, that is, [i] Raju Sonar [hereinafter also referred to as ‘the accused-appellant no. 1’ or ‘the appellant no. 1’ or ‘the accused no. 1’ or ‘A-1’ at places, for easy reference]; and [ii] Budhey Rai [hereinafter also referred to as ‘the accused-appellant no. 2’ or ‘the appellant no. 2’ or the accused no. 2’ or ‘A-2’, at places, for easy reference]; for the offence under Section 376D, Indian Penal Code [IPC]. By the Order on Sentence dated 09.11.2018, both the accused-appellants have been sentenced to undergo imprisonment for twenty years each and to pay a fine of Rs. 20,000/- each, in default of payment of fine, to undergo further rigorous imprisonment for one year each. 2. It was on 19.09.2013, a First Information Report [FIR] was registered at the instance of the prosecutrix as the informant before the Officer In- Charge, Ziro Police Station, Lower Subansiri District wherein it was inter alia stated that in the evening hours of 18.09.2013, the accused no. 1, who was her boyfriend, called her over phone and asked her to wait for him on the Main Road near the Old Ziro Market. Accordingly, she waited for the accused no. 1 on the Main Road. At around 17-00 hours, the accused no. 1 came along with his friend, the accused no. 2 in a Tata Mobile vehicle and took her towards the Pine Grove area. Reaching there, she was taken inside the jungle and forcefully raped. It was at around 02-00 hours on 19.09.2013 they took her back to Hapoli. When they were on the way to Field Line, a team of Police personnel intercepted them and then, she told about the incident before the Police personnel. Page No. 4/38 3. On receipt of the FIR, the Officer In-Charge, Ziro Police Station registered the same as Ziro Police Station Case no. 48/2013 under Section 376[g], Indian Penal Code [IPC] r/w Section 4 of the Protection of Children from Sexual Offences [POCSO] Act, 2012 on 19.09.2013 and took up the investigation of the case himself. 4. During the course of investigation, the Investigating Officer [I.O.] recorded the statements of the witnesses including the statement of the informant-prosecutrix under Section 161, Code of Criminal Procedure [‘CrPC’ or ‘the Code’, for short]. Thereafter, the I.O. forwarded the prosecutrix to the District Hospital, Ziro on 19.09.2013 for her medical examination. The medical examination of the prosecutrix was done at the District Hospital, Ziro on 19.09.2013. The I.O. by visiting the Pine Grove area, that is, the alleged Place of Occurrence [P.O.] prepared a Sketch Map of the P.O. [Ext.-10]. He also collected the Birth Certificate of the prosecutrix. A number of seizures were made during the investigation by a nos. of Seizure Lists. The I.O. got the statement of the prosecutrix recorded under Section 164, CrPC before the Judicial Magistrate, Ziro. The statements of the two accused persons [A-1 & A- 2] were also recorded under Section 164, CrPC on 28.10.2013. After completing investigation into the case, the I.O. submitted a charge- sheet under Section 173[2], CrPC vide Charge-Sheet no. 58/2013 on 11.11.2013 finding a prima facie case established to proceed for trial against the two accused-appellants for commission of the offences under Section 376[g], IPC r/w Section 4, POCSO Act. 5. The Special Court registered the case as Sessions Case no. 221/2013 [YPA]. The Special Court secured the appearance of the two accused persons on 18.02.2014. The prosecution case was opened by the Page No. 5/38 learned Special Public Prosecutor. After hearing the learned Special Public Prosecutor and the learned defence counsel; and after going through the materials on record, the Special Court framed charges under Section 376D, IPC and Section 4, POCSO Act against the two accused persons on 18.02.2014. When the charges were read over and explained to the two accused persons, they pleaded not guilty and claimed to be tried. 6. During the course of the trial, the prosecution side examined eight nos. of witnesses and exhibited eleven nos. of documents as documentary evidence to bring home the charges against the two accused persons. After closure of evidence from the prosecution side, both the accused persons were examined under Section 313[1][b], CrPC by putting before them the adverse circumstances emerging from the evidence led by the prosecution side. When the accused persons were asked whether they would adduce evidence in their defence, the accused no. 1 declined to adduce any evidence in his defence and the accused no. 2 answered in the affirmative. Thereafter, the accused no. 2 examined himself and his wife as D.W.1 and D.W.2 respectively. After hearing the learned counsel for both the sides, at the stage of argument; and upon evaluation of the evidence/materials on record, the Special Court proceeded to deliver the verdict of guilt against the two accused persons by the impugned Judgment. After hearing both the convicts on sentence under Section 235[2], CrPC, the Special Court passed the Order on Sentence in the afore-mentioned manner. Hence, the two criminal appeals. 7. We have heard Ms. S.V. Darang, learned Amicus Curiae for both the accused-appellants; Ms. T. Jini, learned Additional Public Prosecutor, Page No. 6/38 Arunachal Pradesh for the respondent no. 1; and Ms. C. Ering, learned Legal Aid Counsel for the respondent no. 2. 8. Ms. Darang, learned Amicus Curiae appearing for both the accused- appellants has submitted that there are many gaps in the prosecution case. It is submitted that the prosecutrix and the accused-appellant no. 1, Raju Sonar were in a relationship at the relevant time and on the date of the incident, the prosecutrix had willingly gone with him and his friend, that is, the accused-appellant no. 2, Budhey Rai. Ms. Darang has further contended that the prosecutrix had willingly gone to an area like Pine Grove area having sparse population and it was there the incident of rape was alleged to have taken place. It is contended that conviction against the two accused-appellants could not have been based on the singular testimony of the prosecutrix, which has many infirmities. Subsequent visits of the prosecutrix, after the arrest of the two accused-appellants, to meet them in Police Station is indicative of participation of the prosecutrix in a consensual act with the accused- appellant no. 1 and the accused-appellant no. 2 has been wrongly implicated without there being any participation of his in any physical act with the prosecutrix. The learned Amicus Curiae has further contended that the prosecution had also relied upon the version of Police witnesses to strengthen its case. The learned Amicus Curiae has canvassed that as the consensual act had happened in a forest area, the abrasions found on the person of the prosecutrix were of natural consequence. The wearing apparels of the prosecutrix and the two accused persons were seized and sent for examination but no FSL Report was produced by the prosecution during the trial weakening the prosecution case. In view of presence of such infirmities and with the versions of the prosecutrix given at different times not inspiring Page No. 7/38 confidence due to their inconsistencies, the Judgment and Order of Conviction and Sentence passed by the Special Court is not sustainable in law and the same is liable to be interfered with. 9. Ms. Jini, learned Additional Public Prosecutor appearing for the State has strenuously opposed the contentions advanced on behalf of the accused-appellants. The factum of relationship between the prosecutrix and the accused-appellant no. 1 at the relevant time cannot give rise to a conclusion that there was consent of the prosecutrix to any sexual act. Willingness on the part of the prosecutrix to go with the accused- appellant no. 1 he being a boyfriend, to a Fair [Mela] on the date of the incident and willingness to participate in a sexual act with her boyfriend are completely different from each other and, by no stretch, the second act can be considered to be a natural consequence of the first act. The learned Additional Public Prosecutor by referring to the statements of the prosecutrix, given at different times, has submitted that the core version of the prosecutrix as regards commission of forceful sexual act by the two accused persons had remained consistent all throughout and was not discredited and shaken in any manner. The medical evidence has clearly supported the core version of the prosecutrix. The testimony of the Police witnesses have lent further corroboration to the prosecution case. The defence case projected through the testimony of the two defence witnesses is clearly an afterthought. In the version of the accused-appellant no. 2, who deposed as D.W.1, he had sought to extricate himself by projecting himself as a non-participant in any forceful act and by projecting that the prosecutrix and the accused- appellant no. 1 had sex on the date of the incident with consent of each other. With presence of injuries on the person of the prosecutrix, such version of his extricating himself and implicating the accused-appellant Page No. 8/38 no. 1 cannot be believed. It is evident from the evidence on record that subsequent visit, if any, of the prosecutrix to the Police Station to meet the accused persons with the wife of the accused-appellant no. 2 was for persuasion of the wife of the accused-appellant no. 2, who wanted to settle the case amicably. It is the incident of rape, not the subsequent event like a visit, which was material. Contending that there is no infirmity of any kind and the testimony of the prosecutrix coupled with the medical evidence and the corroborative evidence in the form of testimony of the Police personnel is of conclusive nature, the criminal appeals lack merit and are liable to be dismissed. 10. Ms. Ering, learned Legal Aid Counsel appearing for the respondent no. 2-prosecutrix has submitted that the prosecutrix was found out to be below the age of majority by the learned Special Court based on evidence. Merely because the prosecutrix had consumed beer with the two accused persons would not change the nature of the crime committed on the prosecutrix without her consent by the two accused persons. The accused-appellants have been convicted under Section 376D, IPC in view of Section 42 of the POCSO Act, 2012 and therefore, question of consent does not arise in the case. Supporting the submissions of the learned Additional Public Prosecutor for the State, Ms. Ering has submitted that the version of the prosecutrix was consistent and conclusive at all stages. Further, the medical evidence has corroborated such version of the prosecutrix. There is a presumption as to absence of consent in a case of gang rape. In support of such contention, the decision of the Hon’ble Supreme Court in Md. Iqbal and another vs. State of Jharkhand, [2013] 14 SCC 481, has been referred to. Page No. 9/38 11. We have given due consideration to the submissions advanced by the learned counsel for the parties. We have also gone through the evidence/materials including the testimony of the prosecutrix and the witnesses, and the documentary evidence led by the prosecutrix during the trial, which are available in the case records of Sessions Case no. 221/2013 [YPA], in original. 12. The prosecutrix who was also the informant, was examined as P.W.1. In her examination-in-chief, P.W.1 deposed that the accused no. 1 was a friend of her friends, Hage Anyo and Hage Anya, who used to run a hotel. P.W.1 deponed that she used to visit the said hotel and as the accused no. 1 also used to come to the hotel often to take food, they got acquainted with each other. On 18.09.2013, the accused no. 1 called her on her mobile and requested her to accompany him to a Mela [Fair], with Hage Anyo and Hage Anya. He told her to wait for him at Old Ziro Area where he would come to pick her up. Thereafter, the accused no. 1 called her at 04-30 p.m. and accordingly, she came to the Main Road of Ziro to wait for him. The accused no. 1 came to Ziro only after 05-00 p.m. along with the accused no. 2 whose name she came to know as Budhey Rai. On request, she got into the Tata Mobile vehicle. On getting into the vehicle, the accused no. 1 told her that his another friend was waiting for them at Old Ziro and they would have to go there to pick him up. Then, both of them took her towards Pine Grove area in the jungle side from kutcha road. The Pine Grove area was reached after driving for about one hour from the place of pick-up. Reaching there, the accused no. 1 told her that his friend’s father was performing Puja inside the jungle and he had to go inside the jungle to call his friend’s father. Then, the accused no. 1 stopped the vehicle and both the accused persons went inside the jungle keeping her inside the Page No. 10/38 vehicle. After some time, the accused no. 2 came out from inside the jungle alone and asked her to go inside the jungle. When she refused to go inside the jungle the accused no. 2 forcefully dragged her towards the jungle side and after dragging her inside the jungle, he forcefully committed rape upon her. Though she resisted and cried not to do such act but the accused no. 2 forcefully committed rape upon her. After such act was committed, she ran out towards the vehicle. The accused no. 1 was found standing near the vehicle at that time. She then told him about the incident and scolded him why he allowed such incident to happen. In the meantime, the accused no. 2 came out of the jungle following her and caught her hand. The accused no. 2 then asked the accused no. 1 to commit sexual intercourse with her. Then, the accused no. 1 also committed forceful sexual intercourse with her and the accused no. 2 helped him by holding both of her hands. After commission of forceful sexual intercourse with her by the accused no. 1, she was again dragged inside the vehicle by the accused no. 2. Inside the vehicle, the accused no. 2 again committed forceful sexual intercourse with her. When she shouted for help from the accused no. 1, he did not respond. After committing sexual intercourse by both of them in the said manner, they took her back to Hapoli. When they reached near the Ground at Hapoli, Police personnel intercepted them at around 01-00 hours. P.W.1 deposed that when they were stopped by the Police personnel, she narrated the entire incident to the Police personnel. The Police personnel took them to the Police Station at first and later on, she was dropped at her house at Ziro asking her to come at 10-00 hours in the morning. Both the accused persons were kept in the Police Station for the night. P.W.1 stated that on 19.09.2013, she went to the Police Station along with her father at around 10-00 a.m. Her statement was recorded at first and thereafter, the Police took her Page No. 11/38 to the Hospital for medical examination. She was also taken to the Magistrate for recording her statement. P.W.1 exhibited the FIR as Ext.- 1 with her signature therein as Ext.-1[1] and the statement recorded under Section 164, CrPC as Ext.-2 with her signatures therein as Ext.- 2[a], Ext.-2[b] and Ext.-2[c]. 12.1. During cross-examination, P.W.1 admitted that she stated before the Police that the accused no. 1 was her boyfriend since the month of June, 2013. But prior to 19.09.2013, they did not enter into any physical act. She stated that her father scolded her once for making friendship with the accused no. 1. P.W.1 stated that on the same night, some other persons were also detained by the Police personnel at the Beat House where they were also taken. P.W.1 stated that on four occasions, the Police personnel asked her to give her statement before the Magistrate and accordingly, she gave her statement. P.W.1 denied suggestions that the accused persons did not commit rape on her and she had consensual sex with the accused no. 1 during the night of the incident. P.W.1 stated that on 10.10.2013 and 19.10.2013, she went to the Police Station with the wife of the accused no. 2, who went there to meet the accused persons. P.W.1 stated that she did not remember her exact date of birth and denied a suggestion that she was nineteen years of age on the date of her deposition. She claimed her age to be seventeen years. She admitted that she was asked by the Public Prosecutor to give the true version of the incident, which was already stated by her before the Police and the Magistrate. P.W.1 stated that she had deposed everything truthfully. 13. The four witnesses – P.W.2, P.W.3, P.W.4 & P.W.7 – are all Police personnel of Arunachal Pradesh Police [APP] in the rank of Constable Page No. 12/38 and they deposed about an incident occurred during the night intervening 18.09.2013 and 19.09.2013, which resulted also in apprehension of the two accused persons. 14. In his examination-in-chief, P.W.2, Honjing Wangpan deposed that on 18.09.2013, he was working as a Police Constable, APP at Ziro and on the night of 18.09.2013, his duty was from 12-00 O’clock mid-night to 04-00 a.m. of 19.09.2013. At around 11-30 p.m. on 18.09.2013, he came out of his house to report at the Police Station at 12-00 O’clock mid-night and when he reached the junction before Hapoli ground on his way to the Police Station, he saw one girl shouting and one boy was dragging the girl. Seeing him, the girl ran towards him and the boy fled away from the spot. P.W.1 stated that then, he contacted the other Police personnel who were also on duty at that time. The girl then told him that the boy who dragged her, was a driver of a Tata Mobile vehicle. After some time, the other Police personnel – P.W.3, P.W.4 and P.W.7 reached the place. The girl told all of them that when she was coming back after attending a birthday party at Hill Top, the incident took place. She told them that she knew the house of the boy who dragged her. Thereafter, the girl took them to the house of the boy, the boy was not found there. However, the boy was apprehended from the same house subsequently. The boy was thereafter, being taken to the Beat House. P.W.1 stated that while they were searching for the boy who dragged the girl, one Tata Mobile vehicle stopped on the Road near them. There were two male persons and the prosecutrix inside the vehicle. P.W.1 identified the accused no. 1 as one of the persons inside the said Tata Mobile vehicle. When they were asked wherefrom they were coming, the prosecutrix disclosed to them that the two persons took her forcefully to Pine Grove area at Ziro and committed rape on Page No. 13/38 her. Then, the accused no. 1 and the prosecutrix [P.W.1] were also taken to the Beat House along with the other boy who was picked up by them in connection with the other incident. The other person inside the Tata Mobile vehicle fled away from the spot. He was also brought back later on to the Beat House. Thereafter, the entire incident was reported by them at the Police Station and the two accused persons were taken into custody. During cross-examination, P.W.2 stated that due to darkness, he could not identify the other person who was inside the Tata Mobile vehicle along with the prosecutrix that night. 15. P.W.3, Nyakjung Jugli deposed that he came to identify the two accused persons since after the incident. He came to know the name of the accused no. 1 as Raju Sonar [A-1] since the previous month as he [P.W.3] had been escorting him from Ziro to the Court. As regards the incident, P.W.3 stated that he was assigned patrolling duty in the night intervening 18.09.2013 and 19.09.2013 from 12 O’clock mid-night to 04-00 a.m. At around 11-30 p.m., he was telephonically called by P.W.2 to reach a particular spot as there was a problem. P.W.2 along with P.W.4 then went to the spot. P.W.3 also called P.W.7 to join them at the spot. When they reached the spot, P.W.2 told them that a boy was molesting a girl and the boy fled away from the spot. Then, they started to search for the boy, who was said to be a driver of a Tata Mobile vehicle. They were led by the said girl to a house near a field. But, the boy was not found there. When he with his colleagues was searching for the said boy, they saw the two accused persons [A-1 & A-2] along with the prosecutrix. When they were questioned, the prosecutrix told them that the two accused persons [A-1 & A-2] committed rape on her at some place called Pine. One of the two accused persons fled away from the spot. The other accused person and the prosecutrix along with Page No. 14/38 the other girl victim of the other incident were taken to the Beat House. Later on, the incident was reported to the Officer at the Police Station and all of them were taken to the Police Station. The other accused person who fled away from the spot was, later on, brought to the Police Station. During cross-examination, P.W.3 stated that the night was a dark night. He denied a suggestion that when they were led by the victim girl from the first incident to a house, the accused no. 1 did not come out from inside the house. P.W.3 stated that the accused no. 2 was not taken to the Police Station by them in the night of the incident. 16. P.W.4, K. Tante stated that on the night of the incident which was a day in September, his duty was from 12-00 O’clock mid-night to 04-00 a.m. At around 11-45 p.m., P.W.2 called him to come near the field. At that time, he was with P.W.3. Then, both of them went near the Field. On reaching there, P.W.2 told them that some person tried to commit rape on one girl and the girl was seeking protection. P.W.2 told them that the person had to be found out. Then, they were led to a room nearby the Field by the girl. But the person, who harassed the girl, was not found there. When all of them were on their way back, they saw a Tata Mobile vehicle with two persons and the prosecutrix inside it. All three of them were made to come out of the Tata Mobile vehicle and the prosecutrix told them that the two persons with her in the Tata Mobile vehicle took her to Pine Grove area site and committed rape on her. When the prosecutrix was narrating the incident, one of the two persons had suddenly fled away from the spot. The prosecutrix and the remaining person were taken to the Beat House at Hapoli along with the girl and the boy from other incident, which also occurred at that night. Later on, the other accused person who fled away from the spot was brought to the Beat House. Thereafter, all the three male persons, Page No. 15/38 the prosecutrix were taken to the Police Station. P.W.4 stated that he had forgotten their faces and therefore, he could not identify the accused persons [A-1 & A-2]. In cross-examinationP.W.4 stated that he and others were told about the incidence by the prosecutrix. 17. P.W.7, Joram Taga deposed that at around 12-00 O’clock mid-night on 18.09.2013, he was heading towards the Police Station for patrolling duty. At that time, he on receipt of a phone call from P.W.2, reached near Club Road as one girl was shouting there for help. Then, along with his colleagues and the girl searched for the person who caught hold of the girl. Then, the two accused persons reached near the spot in a vehicle. Both of them were then taken to the Beat House. The prosecutrix told them that the two accused persons took her to jungle side and committed rape on her. P.W.7 stated that during that night, two more male persons and one female were taken to the Police Station. In cross-examination, P.W.7 stated that the prosecutrix disclosed her name and told them that the accused persons committed rape on her after taking her to jungle. 18. P.W.5, Dr. Kuru Tama was serving as a Medical Officer in the District Hospital, Ziro on 19.09.2013. P.W.5 deposed that in the after-noon hours of 19.09.2013, the prosecutrix was brought to her for her medical examination. Accordingly, P.W.5 examined the prosecutrix and recorded her findings : [i] Hymen was not intact. No recent tears of hymen. There were old tears. [ii] Multiple abrasions were present in the buttock and back of upper thigh and mild abrasions on her right breast lateral side; and [iii] No foreign article / semen was detected on her private parts. P.W.5 stated that she could not say when the prosecutrix was sexually assaulted. P.W.5 further stated that vaginal swab was collected Page No. 16/38 and sent to the Police for sending it for forensic examination. As per the statement of the prosecutrix given to her, the incident took place in the night of 18.09.2013 which meant that the prosecutrix was produced before her after about 24 hours. She observed that the age of the prosecutrix was not less than 15 years. P.W.5 exhibited the Medical Examination Report, prepared by her, as Ext.-3 and two signatures appearing therein as Ext.-3[a] and Ext.-3[b] as her signature and Dr. Kime Yubey, Medical Superintendent respectively. In cross-examination, P.W.5 stated that she did not conduct age determination test of the prosecutrix. The age of abrasion on the right breast lateral side of the prosecutrix could be a day old. P.W.5 further stated that abrasion used to disappear after three-four days. 19. P.W.6, Millo Tayo deposed that on 19.09.2013, he was present in the Police Station and on that day, the Patrolling Party brought the prosecutrix. Then, the I.O. of the case asked him to take the prosecutrix to the Hospital and accordingly, he took her to the Hospital for her medical examination. After the medical examination of the prosecutrix was over, he took her back to the Police Station. P.W.5 exhibited five nos. of Seizure List as Ext.-4, Ext.-5, Ext.-6, Ext.-7, Ext.-8 and Ext.-9 respectively. In cross-examination, P.W.6 stated that he did not see the materials mentioned in Ext.-5, Ext.-6, Ext.-7 and Ext.-9 in court. 20. By Seizure List dated 19.09.2013 [Ext.-4], two bottles containing vaginal swab of the prosecutrix were seized, on being produced by P.W.5. One light blue cotton underwear was seized from the accused no. 2 vide Seizure List dated 19.09.2013 [Ext.-5]. One black colour underwear was seized from the accused no. 1 vide Seizure List dated Page No. 17/38 19.09.2013 [Ext.-6]. By Seizure List dated 19.09.2013 [Ext.-7], one Tata Mobile vehicle bearing Registration no. AR-06/4203 was seized at 18-20 hours. Vide another Seizure List, M.R. no. 25/2013 [Ext.-8], one pink and white stripped colour undergarment was seized from the prosecutrix. By another Seizure List, M.R. no. 28/2013 [Ext.-9], two bottles containing blood sample of the two accused persons were collected on 25.09.2013. 21. P.W.8, Ige Lollen was serving as a Sub-Inspector of Police & Officer In- Charge, Ziro Police Station on 19.09.2013. At about 13-00 hours on 19.09.2013, a written complaint was received at the Police Station from the prosecutrix. The FIR was accordingly registered. P.W.8 stated that during the course of investigation, he recorded the statements of the witnesses, visited the P.O. and drew a Sketch Map of the P.O. He also recorded the statement of the prosecutrix and forwarded her to Hospital for medical examination. Thereafter, the prosecutrix was forwarded to the Judicial Magistrate for recording her statement under Section 164, CrPC. The Birth Certificate of the prosecutrix was seized and as per the Birth Certificate, the prosecutrix was a minor. He also seized the Tata Mobile vehicle, the undergarment of the prosecutrix and blood samples of the accused persons. The seized materials were forwarded to the court for forwarding the same to the FSL for reports. Later on, the accused persons were also forwarded to the Magistrate for recording their statements under Section 164, CrPC. P.W.8 exhibited the FIR [Ext.-1], the Seizure Lists [Ext.-4, Ext.-5, Ext.-6, Ext.-7, Ext.-8 and Ext.- 9], the Sketch Map of the P.O. [Ext.-10] and the Charge-Sheet [Ext.-11] along with his signatures appearing therein. Page No. 18/38 21.1. During cross-examination, P.W.8 stated that he did not seize any beer bottle from the P.O., which was a bushy and rough area. He denied a suggestion that he did not record the age of the prosecutrix properly and the statements of the witnesses. P.W.8 stated that the FSL Report of the vaginal swab collected from the prosecutrix was not on record. The sample was sent to the court but thereafter, no collection was made. He stated that on the night of the incident both the accused persons were brought to the Police Station along with the prosecutrix. He denied a suggestion that he had repeatedly asked the prosecutrix to give a statement before the Magistrate. 22. The accused-appellant no. 2 who examined himself as D.W.1, deposed to the effect that on 18.09.2013, Raju Sonar [A-1] who was a helper in his vehicle, asked him to drop him [A-1] at Ziro. Before reaching Ziro, Raju Sonar’s [A-1] girlfriend, victim was found waiting at Kudung Bagang. They stopped there to pick her up. At Ziro, they took three bottles of beer and went towards the Ring Road. Raju Sonar [A-1] asked him to wait in the vehicle and he [A-1] and the prosecutrix left for somewhere taking two bottles of beer with them. As he felt sleepy, he slept for about 2 ½ hours. D.W. 1 stated that at about 11-45 p.m., they started their return and when they reached Ziro on their way back, the prosecutrix was asked to go to her house. But, she refused to go to her house saying that she would not be allowed to enter in the house at night and she wanted to stay with Raju Sonar [A-1]. Then, they took her to his house at S.P. Colony, Hapoli. At his house, he asked his wife to prepare food. After taking food, Raju Sonar [A-1] and the prosecutrix left his house taking his vehicle. Later on, they were caught by Police and the said fact was informed to him by Raju Sonar [A-1]. On receiving the news, he went to the spot on foot. At the spot, Police Page No. 19/38 caught him as well, and assaulted him alleging that they roamed about the whole night. Thereafter, they were taken to the Police Station and were assaulted and put them inside the lock-up. D.W.1 stated that on 10.10.2013, the prosecutrix and his wife [D.W.2] came to the Police Station and the prosecutrix stated that she gave statement before the Police at the Police Station under pressure. Similarly, she gave the same statement in the court as per the instruction of the Police. Though they tried to settle the matter but same could not happen due to non- compoundable nature of the crime. D.W.1 stated that prior to the incident, Raju Sonar [A-1] and the prosecutrix who were in love, came to his house in August, 2013 and took food. D.W.1 stated that it was a fault on the part of the Police. 22.1. In cross-examination, D.W.1 stated that it was a festive occasion on the day of incident and they took liquor on that day. In the evening also, they took beer. Raju Sonar [A-1] could not drive the vehicle properly. D.W.1 further stated that they left for Ring Road from Hapoli at about 06-30 p.m. and reached Ring Road at about 07-30 p.m. They took the vehicle to about 1 ½ KM inside the Ring Road. Raju Sonar [A-1] and himself were not in drunken mood. Rather, they were in fresh mood at that time. D.W.1 admitted that he took one bottle of beer at the spot. Raju Sonar [A-1] and the prosecutrix went inside the jungle for about 20 metres from the Ring Road. At that time, he [D.W.1-A-2] was in the vehicle. D.W.1 denied a suggestion that Raju Sonar [A-1] came out from the jungle and told him [D.W.1] that it was then his turn with the prosecutrix. They reached Hapoli at about 12-30 a.m. He further stated that the statement given by him before the Magistrate was false. Page No. 20/38 23. D.W.2, Smti. Dulley Yari, was the wife of Budhey Rai [D.W.1–A-2]. In her examination-in-chief, D.W.2 stated that at about 05-00/06-00 p.m. on 18.09.2013, she made a phone call to her husband [A-2] who told her that he was going to Ziro taking Raju Sonar [A-1] and his girlfriend to roam. At about 12-15/12-30 a.m., her husband told her to prepare food for which she scolded him. She prepared food for three persons. After they reached her house at S.P. Colony, Hapoli, they took food in her house. At that time, the prosecutrix behaved nicely. Thereafter, Raju Sonar [A-1] and the prosecutrix left for Raju Sonar’s [A-1] house as he was to drop the prosecutrix at Ziro on the next morning. After about 15 minutes, her husband [D.W.1 – A-2] received a phone from Raju Sonar [A-1] asking him to come as he was caught by the Police. Then, her husband, Budhey Rai [D.W.1 – A-2] left for the spot. When she made a call to her husband after about 10 minutes, his phone was found switched off. As she got worried, she went to the Police Beat House along with two neighbours. But there was no one at the Police Beat House. As her husband’s phone was found switched off, she then went to the Police Station where she saw her husband’s vehicle. She was told by Police to come in the next morning. In the next morning they came to know that both the accused persons were arrested on the allegation of raping the prosecutrix. D.W.2 stated that on 10.10.2013, the prosecutrix came to her and begged for pardon saying that she had mistakenly lodged the complaint against her husband under duress. D.W.2 further stated that the prosecutrix told her that the I.O. had, on four occasions, told her to give the same statement which was given by her on the date of the incident, also before the Magistrate. D.W.2 deposed that though the prosecutrix was supposed to give a true testimony in the court on 20.07.2014, the prosecutrix was taken to a room before she entered into the court room and she was told to give Page No. 21/38 the same statement which she had given before the Magistrate. D.W.2 also stated that subsequently, the prosecutrix had got married with another person. 23.1. In her cross-examination, D.W.2 stated that she was not an eye-witness to the incident and she did not know what happened from Ziro to Pine Grove. She admitted that they tried to settle the matter outside the court but there was no written agreement. She admitted that the Police did not hear the conversation between her and the prosecutrix where the prosecutrix begged for pardon for lodging a false complaint against her husband. 24. As per the version of the prosecutrix, the commission of forceful rape had occurred after evening hours of 18.09.2013 in the Pine Grove area, which was at some distance from Ziro. Before a discussion as regards the occurrence of the event of rape, an analysis of the events prior to reaching the Pine Grove area and aftermath would be apposite. 25. In his testimony, the accused no. 2 examining himself as D.W.1, had admitted that in the evening of 18.09.2013, he along with his helper in the vehicle, Raju Sonar [A-1] picked up the prosecutrix in his vehicle at Ziro. At Ziro, they also took three bottles of beer and went towards the Ring Road at about 06-30 p.m. It was admitted by A-2 that as it [18.09.2013] was a festive day, both he and Raju Sonar [A-1] took liquor during day time. In the said evening also, they consumed beer. They reached Ring Road at about 07-30 p.m. and the vehicle was taken to about 1 ½ K.M. inside the Ring Road. According to Budhey Rai [A-2], it was at about 11-45 p.m. they started their return for Ziro. As per the version of D.W.2, the wife of Budhey Rai [A-2], she received a phone Page No. 22/38 call from her husband at about 05-00/06-00 p.m. on 18.09.2013 and her husband, Budhey Rai [A-2] told her that he was going to Ziro with Raju Sonar [A-1] and the prosecutrix to roam. At about 12-15/12-30 a.m. on 19.09.2013, she was instructed by her husband [A-2] to prepare food and it was thereafter all three of them, that is, Raju Sonar [A-1], Budhey Rai [A-2] and the prosecutrix returned to her house. 26. In the FIR [Ext.-1] lodged by the prosecutrix, the prosecutrix mentioned that it was at around 05-00 p.m. Raju Sonar [A-1] came with Budhey Rai [A-2] in a Tata Mobile vehicle to pick her up from the main road near the Old Ziro Market and took her towards the Pine Grove area. It was at around 02-00 hours on 19.09.2013, they reached Hapoli where they were intercepted by the Police personnel. In her statement recorded under Section 164, CrPC, the prosecutrix reiterated that at around 05-00 p.m. both Raju Sonar [A-1] and Budhey Rai [A-2] came in a Tata Mobile vehicle to pick her up from the main road of Old Ziro Market. After the prosecutrix got into the vehicle, the two accused persons instead of going to the Fair [Mela] at first, on which pretext her boyfriend Raju Sonar [A-1] requested her to accompany him, insisted her to go with them to another place first, before going to the Fair [Mela]. Thereafter, two accused persons drove the vehicle to the Pine Grove Forest area where she was forcefully raped by both the accused persons. It was after midnight, they were intercepted by Police personnel. In her testimony before the court also, the prosecutrix testified that after 05-00 p.m., the two accused persons, Raju Sonar [A- 1] and Budhey Rai [A-2] came in a Tata Mobile vehicle and picked her up from the main road of Old Ziro Market where she was asked to wait by Raju Sonar [A-1] to go to the Fair [Mela] with him. But after she got into the vehicle, they took her towards Pine Grove area, which was Page No. 23/38 reached after about one hour of drive from the Main Road. The prosecutrix further mentioned that it was at around 01-00 p.m. on 19.09.2013, Police personnel intercepted all three of them near the Ground at Hapoli. When the prosecutrix was cross-examined, it was never suggested to her by defence that after their return from Pine Grove area on 19.09.2013, all three of them had food in the house of Budhey Rai [A-2]. Thus, it is evidently clear that the story of having food by all three of them in the house of Budhey Rai [A-2] in the presence of his wife [D.W.2] is a story which had been projected on afterthought. 27. That the story of having food by the two accused persons, Raju Sonar [A-1] and Budhey Rai [A-2] along with the prosecutrix in the house of Budhey Rai [A-2] after their return from Pine Grove area is an afterthought would be more evident from the testimony of Police personnel who were unaware of the events occurred prior to the interception of the two accused persons along with the prosecutrix past mid-night on 19.09.2013. 28. The prosecution witnesses – P.W.2, P.W.3, P.W.4 & P.W.7 – were all Police personnel who were assigned patrolling duties during the night hours intervening 18.09.2013 and 19.09.2013 from 12 o’clock mid-night to 04-00 a.m. From the testimony of these witnesses it has come out that on that night, they had to handle two situations – one concerning a boy and a girl who came in a Tata mobile vehicle prior to the incident concerning the two accused persons [A-1 & A-2] and the prosecutrix, who also came to the same spot in a Tata mobile vehicle. In the first incident, P.W.1 came across the girl and the boy at a place near Hapoli Ground. He saw the girl shouting with the boy dragging her. Seeing him Page No. 24/38 [P.W.1], the girl ran towards him to allege that the boy was harassing her and at that moment, the boy fled away from the scene. Then P.W.2 called his colleague Police personnel, P.W.3, P.W.4 & P.W.7 over phone to the spot and they made attempts to nab the boy who fled away from the scene. In the course of the search when they came back again to the Road, they intercepted the Tata mobile vehicle wherein the two accused persons [A-1 & A-2] and the prosecutrix were the occupants. Seeing them, the prosecutrix disclosed to them that the two accused persons [A-1 & A-2] took her to Pine Grove area at Ziro and forcefully committed rape on her. According to these witnesses, they could apprehend the accused no. 1 at the spot. But, the accused no. 2 managed to run away from the spot. According to their testimony, the accused no. 2 came back to the spot and he was also apprehended. Thereafter, the accused persons [A-1 & A-2] and the prosecutrix were first taken to the Beat House and thereafter, to the Police Station where the two accused persons were kept for the night. The prosecutrix was allowed to go home and she was dropped at her house asking her to report at the Police Station in the next morning. 29. It is settled that the evidence of the official [Police] witnesses is not to be discarded merely on the ground that they belong to the Police force. In Pramud Kumar vs. State [Government of NCP of Delhi], [2013] 6 SCC 588, it is held that there is no absolute command of law that the Police Officer cannot be cited as witnesses and their testimony should always be treated with suspicion. If the testimony of the Police Officer is found to be reliable and trustworthy, the Court can definitely act upon the same. If, in the course of scrutinizing the evidence, the Court finds the evidence of the Police Officer as unreliable and untrustworthy, the Court may disbelieve him but it should not do so solely on the presumption that a Police witness should be viewed with distrust. This Page No. 25/38 is also based on the principle that quality of the evidence weighs over the quantity of evidence. 30. There is nothing to disbelieve that the prosecution witnesses, P.W.2, P.W.3, P.W.4 & P.W.7, who were Police personnel, were not on patrolling duty at the time when the Tata Mobile vehicle wherein the two accused persons [A-1 & A-2] were the occupants with the prosecutrix, was intercepted and all of them were quizzed. Having found the two accused persons with the prosecutrix in the vehicle, it was normal for these witnesses as part of official duty to find out about their presence at such time beyond mid-night on a public road. That official acts of the Police have been regularly performed is a wise principle of presumption and recognized even by the legislature [Ref. : State, Govt. (NCT of Delihi) vs. Sunil and another, (2001) 1 SCC 652, Para – 21]. In such view of the matter, when these Police personnel gave evidence in Court that they intercepted a vehicle at the time and at the place wherein the two accused persons [A-1 & A-2] and the prosecutrix were occupants, and seeing them, the prosecutrix disclosed to them that she was raped by the two accused persons [A-1 & A-2] are for acceptance of the Court, unless the defence by cross- examination could show that the evidence of the Police Officials is either unreliable, therefore, unsafe to be acted upon. But, in the present case, the defence had failed to do so. On going through the testimony of P.W.2, P.W.3, P.W.4 & P.W.7, this Court has not found any good reason to suspect the truthfulness of the version of these witnesses. 31. From a combined analysis of the testimony of the afore-mentioned witnesses, it has become evident that the accused persons [A-1 & A-2] and the prosecutrix were found together in a Tata Mobile vehicle in the mid-night hours post 12 o’clock on 19.09.2013 at the Road of Hapoli Page No. 26/38 and as soon as they came near the vehicle, the prosecutrix disclosed about the incident of taking her to Pine Grove area by the two accused persons and the commission of forceful rape by them. 32. Close on the heels of the above disclosure, the FIR [Ext.-1] was lodged by the prosecutrix before the Officer In-Charge, Ziro Police Station and the said FIR was received at 01-00 hours on 19.09.2013 and was registered to initiate investigation into the case of allegation of commission of the offences under Section 376[g], IPC r/w Section 4, POCSO Act. In the FIR, the contents of which are mentioned in paragraph 2 above, the prosecutrix mentioned about the incident in the similar manner as it was disclosed by her at the first instance before the Police personnel when the prosecutrix and the two accused persons [A- 1 & A-2] were intercepted at sometime earlier. 33. The statement of the prosecutrix recorded under Section 164, CrPC was exhibited as Ext.-2. In the said statement, the version of the prosecutrix was consistent with the first disclosure made by her before the Police personnel and the version given in the FIR [Ext.-1]. The testimony of the prosecutrix [P.W.1], as alluded hereinabove, is found consistent with all her previous versions. 34. During the cross-examination of the prosecutrix, the defence elicited that Raju Sonar [A-1] was her boyfriend at the time of the incident but prior to the incident, there was no physical relationship between them. The prosecutrix clearly denied that on the night of the incident, she and Raju Sonar [A-1] had consensual sex and Budhey Rai [A-2] did not commit rape on her. The prosecutrix admitted that on two occasions after the incident, she and D.W.2 had gone to the Police Station to Page No. 27/38 meet the accused persons. It was also urged by the defence that the prosecutrix admitted during her cross-examination that she was asked by Police on four occasions to give the same statement, as was given before them, before the Magistrate also. Similarly, the learned Public Prosecutor had also told her to give the true version of the incident, which was already stated by her before the Police. By highlighting such facts, it has been urged on behalf of the defence that the prosecutrix was influenced to give similar versions. 35. The above contentions of the defence are not acceptable in view of the evidence available regarding the disclosure made by the prosecutrix at the very first instance when she on the night of the incident got the opportunity to meet Police personnel, with the two accused persons [A- 1 & A-2] with her inside the vehicle. In the FIR [Ext.-1] lodged by the prosecutrix immediately after the two accused persons [A-1 & A-2] were apprehended with the prosecutrix, she narrated about the manner in which the incident of rape on her took place. 36. After the Charge-Sheet was laid for the offences under Section 376[g], IPC r/w Section 4, POCSO Act, the Special Court had framed charges for the offences under Section 376D, IPC and Section 4, POCSO Act on 18.02.2014. When the Trial Court was confronted with the question as to whether the prosecutrix was a minor or a major, the Special Court on the basis of the Birth Certificate seized by Police, Age Determination Report given by the Medical Board, and the testimony of P.W.5, the doctor who examined the prosecutrix, reached a finding that at the time of commission of the alleged offence, the age of the prosecutrix was in between 13 years and 18 years. Thereafter, the Special Court had proceeded to observe that even if it is assumed that the prosecutrix was Page No. 28/38 a major and one of the accused persons was her boyfriend, even in that case, if the prosecutrix had refused to have consensual sex such act would amount to rape. The Special Court has observed that in the present case, the prosecutrix as the victim had alleged that both the accused persons [A-1 & A-2] committed rape on her and a presumption can be drawn that a girl did not consent to indulge in sexual act with another man along with her boyfriend. 37. As regards the narration made by the prosecutrix about the manner in which the incident took place, it has emerged conclusively that in the evening hours of 18.09.2013, Raju Sonar [A-1] who was then a friend of the prosecutrix, requested her to accompany him to a Mela [Fair]. When the prosecutrix agreed to go with him, Raju Sonar [A-1] told her to wait for him on the main road of Ziro. But, Raju Sonar [A-1] did not come alone to pick her up. He had brought Budhey Rai [A-2] also along with him. It was Budhey Rai [A-2] who informed his wife telephonically on the said evening that he was going with Raju Sonar [A-1] and his girlfriend i.e. the prosecutrix for roaming. The prosecutrix testified that the two accused persons [A-1 & A-2] instead of taking her to Mela [Fair] had taken her to the Pine Grove area which was at a distance of more than one hour drive, on the pretext of calling a friend’s father who was performing rituals inside the jungle. This part of the testimony of the prosecutrix was not confronted in any manner by the defence. 38. It was in the testimony of the prosecutrix that after reaching the Pine Grove area, both the accused persons [A-1 & A-2] went inside the jungle on the pretext of calling the friend’s father keeping her inside the vehicle and after some time, Budhey Rai [A-2] came out of the jungle alone and asked her to come inside the jungle. When she refused to go Page No. 29/38 inside the jungle, Budhey Rai [A-2] forcefully dragged her towards the jungle side and he forcefully committed rape upon her inside the jungle. As per the testimony of the prosecutrix, there was resistance from her end but she was overpowered by Budhey Rai [A-2] while committing the forceful act. Though after the act she ran out of the jungle towards the vehicle, Raju Sonar [A-1] who was near the vehicle then, did not offer any respite when she scolded him for allowing such act to happen. The prosecutrix further testified that Budhey Rai [A-2] came out of the jungle and caught hold of her and asked Raju Sonar [A-1] to indulge in sexual act with her and then, Raju Sonar [A-1] had also committed forceful intercourse with her. According to the prosecutrix, while Raju Sonar [A-1] was committing forceful sexual intercourse with her, Budhey Rai [A-2] assisted him by holding both of her hands. After indulgence of Raju Sonar [A-1], Budhey Rai [A-2] had once again committed forceful sexual intercourse with her by taking her inside the vehicle. When the prosecutrix cried for help from Raju Sonar [A-1] to rescue her from the grip of Budhey Rai [A-2], Raju Sonar [A-1] did not respond. It was after committing forceful sexual assault upon her by both of them one after the other, they took her to Hapoli. Both the accused persons [A-1 & A-2] during their examination under Section 313, CrPC had admitted that in the evening hours of 18.09.2013, they took the prosecutrix to the Pine Grove area and took beer. 39. The above part of the testimony of the prosecutrix was also not directly confronted by the defence when she was thoroughly cross-examined. Rather, a plea had been advanced by Budhey Rai [A-2] during his testimony that after reaching the spot, Raju Sonar [A-1] and the prosecutrix went somewhere taking two bottles of beer with them and he waited for them near the vehicle for about 2½ hours. The Page No. 30/38 prosecutrix was given a suggestion that on the incident night, she had consensual sex with Raju Sonar [A-1], which suggestion the prosecutrix had categorically denied. 40. As per the Medical Examination Report [Ext.-3] and the testimony of the doctor, P.W.5 who examined the prosecutrix on 19.09.2013, the hymen of the prosecutrix was not intact. There were old tears in the hymen. P.W.5 stated that she was not in a position to say when the prosecutrix was sexually assaulted. Multiple abrasions were found present on the buttock and the back of the upper thigh and mild abrasion was present on the right breast lateral side. 41. A man was said to commit ‘rape’, as per the definition provided in Section 375, IPC existing on the date of the incident, who had sexual intercourse with a woman under circumstances falling in seven descriptions delineated therein, which circumstances inter alia include [a] against her will; [b] without her consent; and [c] with or without her consent, when she was under eighteen years of age. As per Explanation II, consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act. It has been provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that act, be regarded as consenting to the sexual activity. Therefore, consent for the purpose of Section 375, IPC requires voluntary participation. Consent or absence of it can be gathered from an analysis of not only the testimony of the witnesses but along with it, also from the circumstances preceding and/or attending and/or succeeding the alleged act of rape. Page No. 31/38 42. The offence of rape is held to be a crime and not a medical diagnosis to be made by the Medical Officer treating the victim. ‘A Textbook of Medical Jurisprudence and Toxicology’, Twenty Seventh Edition, by Modi has observed that the issue of whether rape has occurred or not is a legal conclusion not a medical one. A Medical Officer’s statement is relevant as about the injuries noticed in and around the private and other parts of the body. In Madan Gopal Kakkad vs. Naval Dubey and another, [1992] 3 SCC 204, it has been observed that it is possible to commit legally the offence of rape without producing any injury to the genitals and in such a case, the Medical Officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape being a legal term, is not a diagnosis to be made by the Medical Officer treating the victim. The only statement that can be made by the Medical Officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one. 43. The evidence as regards presence of multiple abrasions on the buttock and the back of the upper thigh of the prosecutrix as well as mild abrasion on the right breast lateral side indicate towards struggles on the part of the prosecutrix. Such injuries on the person of the prosecutrix go consistent with her version that she was raped forcefully on the previous night inside the jungle at the Pine Grove area. Presence of tears of hymen lends further corroboration to the fact of commission of rape on her. 44. This Court is in agreement with the observation of the Trial Court that even if Raju Sonar [A-1] was the boyfriend of the prosecutrix on the date of the incident, if the prosecutrix had refused to have consensual Page No. 32/38 sex then also, the act would amount to rape. The plea advanced by the defence that the prosecutrix and Raju Sonar [A-1] had consensual sex is to be negated as an act of consensual sex would have been preceded by some preparation to avoid any kind of injury on the persons involved in consensual sex. As per the testimony of the prosecutrix, it was Budhey Rai [A-2] who had first indulged in the act of forceful sexual assault on the victim inside the jungle. The presence of multiple injuries on the person of the prosecutrix lends credence to such version of the prosecutrix that she offered resistance. Raju Sonar [A-1] who was the alleged boyfriend of the prosecutrix, had got involved in the forceful sexual act subsequently near the vehicle. 45. It is well settled that a prosecutrix complaining of having been a victim of the offence is not an accomplice after the crime. Such a victim is a victim of another person’s lust. The sole testimony of the victim, if found reliable and trustworthy, requires no corroboration and is sufficient to invite conviction of the accused. If all the versions of the victim as regards the incident from the starting point when she made disclosure of the incident of rape till her testimony before the court including the previous statement made before the Police and the previous statement before the Magistrate, if any, are found to be consistent on the material points and the victim withstands the cross- examination without any discredit, the same can be acted upon without corroboration in material particulars. A victim of rape is considered to be standing on a higher pedestal than an injured witness as in the later case there is only injury in the physical form, while in the former it is physical as well as psychological and emotional. If such consistent version of the victim finds support from medical evidence, then it lends further credibility to the version of the prosecutrix. Minor contradictions Page No. 33/38 or insignificant discrepancies cannot be a ground for throwing out an otherwise reliable prosecution case. 46. A presumption as to absence of consent in certain prosecution for rape is incorporated in Section 114A of the Evidence Act. Section 114A has inter alia provided that in a prosecution of rape under Clause [g] of sub- section [2] of Section 376 of the Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent. In the Explanation to Section 114A, it is mentioned that ‘sexual intercourse’ shall mean any of the acts mentioned in clauses [a] to [d] of Section 375 of the Indian Penal Code. Prior to incorporation of Section 376D in the Indian Penal Code by Act 13 of 2013, the penalty for committing the offence of gang rape was incorporated in Section 376[2][g] of the Indian Penal Code. In the Explanation 1 to Section 376[2][g], it was mandated that where woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of the said sub-section. In Section 376D, a similar provision has been incorporated. 47. Section 114A containing the presumption as to absence of consent has come up for consideration in a number of cases earlier. In Raju @ Umakant vs. State of Madhya Pradesh, [2025] 8 SCC 281, the Supreme Court has observed as under :- 27. This section came up for consideration before this Court in State of Rajasthan v. Roshan Khan [State of Rajasthan vs. Roshan Khan, (2014) 2 SCC 476 and Mohd. Iqbal vs. State of Jharkhand [Mohd. Page No. 34/38 Iqbal vs. State of Jharkhand, (2013) 14 SCC 481]. This Court held that in view of Section 114-A of the Evidence Act, there is a presumption as to absence of consent in case of gang rape and it will be presumed that the prosecutrix did not give consent as long as the prosecutrix states in evidence before the court that she did not consent. It has further been held that the presumption is based on the reasoning that nobody can be consenting to several persons simultaneously. In this case, apart from feebly suggesting that the prosecutrix has been having physical relations with the co-accused Jalandhar Kol for the last four years and that she went to the house of Jalandhar Kol out of her free will, there is nothing concrete adduced to rebut the presumption. A reading of the evidence of the prosecutrix makes it amply clear that she was subjected to forcible sexual intercourse against her consent. She has also specifically denied the suggestion that she went with Jalandhar on her free will. 48. The offence under Section 376D is attracted when a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention and if the offence is established, each of those persons shall be deemed to have committed the offence of rape. This Court is of the considered view that in order to establish the offence, evidence is to be led to indicate that more than one accused constituting a group or acting in furtherance of a common intention had acted wherein the victim suffered the ignominy of rape. Then, in such situation, if rape had been committed by only one of the accused persons constituting the group or acting in concert, all the accused will be guilty irrespective of the fact that the victim had been raped by one or more of them. The offence of gang rape has been explained by the Hon’ble Supreme Cour of India in Ashok Kumar vs. State of Haryana, Page No. 35/38 [2003] 2 SCC 143, in the context of the then existing Section 376[2][g], IPC read with the Explanation. Therein, it is held that it is not necessary for the prosecution to adduce evidence of a completed act of rape by each one of the accused. The provision embodies a principle of joint liability and the essence of that liability is the existence of common intention; that common intention pre-supposes prior concert which may be determined from the conduct of offenders revealed during the course of action and it would arise and be formed suddenly, but, there must be meeting of minds. 49. The willingness of the prosecutrix, at the request of Raju Sonar [A-1], to get into the vehicle wherein Budhey Rai [A-2] was also with him, who was unknown to the prosecutrix till that time, does not point towards any willingness on the part of the prosecutrix to indulge in any sexual act with any one of them. Similarly, absence of protest for taking her to a sequestered spot like the Pine Grove area and not to the Fair [Mela] does not point towards any willingness on her part to indulge in any sexual act. In the same breath, her sipping of beer with the two accused persons [A-1 & A-2], with one of them [A-1] being her boyfriend, does not amount to consent for any sexual intercourse with either one of them or both. The attending and the subsequent conduct of the prosecutrix clearly indicate towards absence of consent on her part, whereas taking her to Pine Grove area on the pretext of a visit to the Fair [Mela] point towards prior concert on the part of the two accused persons [A-1 & A-2]. 50. This Court has found itself in agreement with the submission of the learned State Counsel and the learned Legal Aid Counsel made in respect of subsequent visit of the prosecutrix to the Police Station at the Page No. 36/38 persuasion of the wife of Budhey Rai [A-2], D.W.2. The defence has sought to draw support from a part of her testimony wherein the prosecutrix had admitted that she and Raju Sonar [A-1] were supposed to go to the house of Raju Sonar [A-1] on that night. But on a closer examination, it is noticed from the testimony of D.W.1 i.e. Budhey Rai [A-2] that after she was taken back from the Pine Grove area to Hapoli after mid-night by the two accused persons [A-1 & A-2], she refused to go to her house. It has emerged from the version of the prosecutrix, as alluded above, the prosecutrix was requested for a visit during the evening hours to a Fair [Mela] only on the date of the incident and on that pretext, she was taken to the Pine Grove area. As the return was only after mid-night, the prosecutrix even after the forcible sexual act she had undergone against her consent, might have agreed to stay the night in the house of Raju Sonar [A-1] for fear of retribution from her parents for returning in the dead of night. In view of the weight of evidence of conclusive nature, absence of FSL Report is not found to have dented the prosecution case in any manner. 51. If the Police personnel or the Public Prosecutor remind a victim of sexual assault to be consistent to her initial version or previous statement, without anything more, the same cannot be termed as exertion of pressure on the prosecutrix. Thus, the contentions advanced on behalf of the defence in that connection cannot be countenanced in the absence of any credible material indicating towards exertion of any kind of pressure on the prosecutrix. 52. Having analysed the case of the prosecution from all standpoints, we are of the unhesitant view that the prosecutrix is found to be consistent in her version as regards commission of rape without her consent all Page No. 37/38 throughout right from the point she made first disclosure of the commission of rape to the Police personnel till she gave her testimony in the court. The evidence of the prosecutrix is not found to have suffered from any basic infirmity. Rather, the evidence of the prosecutrix is found to be trustworthy and unblemished to inspire confidence, which has received ample corroboration not only from the medical evidence, but also from testimony of other prosecution witnesses. 53. A submission has also been advanced to the effect that the substantive sentence imposed on the two accused persons [A-1 & A-2] are harsh and the same can be considered for reduction. Section 376D in the Indian Penal Code has been substituted by Act 13 of 2013 w.e.f. 03.02.2013. After such substitution, an accused convicted of the offence of gang rape under Section 376D of the Indian Penal Code is to be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for remainder of that person’s natural life, or with fine. The sentence imposed by the Special Court on the two accused persons [A-1 & A-2] are imprisonment for twenty years each and to pay a fine of Rs. 20,000/- each. The substantive sentence imposed on the accused persons [A-1 & A-2] is on the lowest side. As per sub-clause [1] of Article 20 of the Constitution of India, no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence. As the offence of gang rape in the present case was found to have been committed on 18.09.2013, that is, after the Act 13 of 2013 came into force w.e.f. Page No. 38/38 03.02.2013, no discretion is available to this Court to reduce the substantive sentence below twenty years. 54. From the discussion made above and for the reasons assigned, we have found no reason to interfere with the Judgment and Order of conviction and sentence passed by the Special Court in Sessions Case no. 221/2013 [YPA]. The criminal appeals being bereft of merits, therefore, fail. Accordingly, affirming the Judgment and Order of the Special Court and maintaining the Order of conviction and sentence, the criminal appeals are dismissed. 55. This Court records its appreciation for the assistance rendered by the Amicus Curiae for the two appellants and the learned Legal Aid Counsel for the respondent no. 2. They are to be paid remuneration as per the rules in force. 56. It is noticed that the Special Court has not made any recommendation for compensation to the victim. Before parting with the record, we recommend that adequate compensation should be awarded under Section 357A, CrPC to the victim. The jurisdictional District legal Services Authority shall consider the matter of granting compensation to the victim as per the victim Compensation Scheme, if any, framed under Section 357A, CrPC. 57. The TCR be sent back forthwith. JUDGE JUDGE Comparing Assistant Digitally signed by Ananta Konwar Date: 2026.06.02 17:03:28 +05'30'