Whether a woman can be prosecuted for Gang Rape?

 However, going through the amended provisions of Section 375 IPC & 376 IPC, the question, whether a female can commit the offence of rape is itself clear by the non-ambiguous language of section 375 of IPC which specifically states that the act of rape can only be done by a 'man' and not by "any woman". Therefore, a woman cannot commit rape. But looking through again the amended provision of Section 376-D IPC, which is a distinct and separate offence of Gang Rape-according to which "Where a woman is raped by 'one or more persons' constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall 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 the remainder of that person's natural life, and with fine". Thus, from the language used in Section 376-D IPC, it is seen that in order to establish an offence under Section 376-D IPC, the prosecution has to adduce evidence to indicate that one or more persons had acted in concert and in such an event, if rape had been committed by even one, all the accused will be guilty irrespective of the fact that victim had been raped by one or more of them. In other words this provision embodies a principle of joint liability and the essence of that liability is the existence of common intention that common intention presupposes prior concert which may be determined from the conduct of offenders revealed during the course of action. In such cases, there must be criminal sharing, marking out a certain measure of jointness in the commission of offence. The term "person" used in the Section should not be construed in a narrow sense. Section 11 I.P.C. defines 'person' as it includes any company or association or body of persons whether incorporated or not. The word "person" is also defined in the Shorter Oxford English Dictionary in two ways: firstly, it is defined as "an individual human being" or "a man, woman, or child"; and, secondly, as "the living body of a human being". As such, a women can not commit the offense of rape but if she facilitated the act of rape with a group of people then she may be prosecuted for Gang Rape in view of the amended provisions. Unlike man, a woman can also be held guilty of sexual offences. A woman can also be held guilty of gang rape if she has facilitated the act of rape with a group of person. {Para 11}

Ratio: Code of Criminal Procedure, 1973 - Section 319--Summoning order--To face trial under Sections 376D and 212 I.P.C.--Argument that woman could not commit rape and therefore applicant could not be prosecuted for gang rape found to be not correct in view of amended provisions of Sections 375 to 376E of I.P.C.--If applicant facilitated act of rape with a group of people then she might have been prosecuted for gang rape in view of amended provisions--Woman could also be held guilty of sexual offences as well as gang rape in case of her facilitating act of rape with group of person--In view of facts and law laid down by Apex Court the court found no scope for interference in impugned order passed by trial court at such stage--Application dismissed.

 IN THE HIGH COURT OF ALLAHABAD

Application U/S. 482 No. 39234 of 2022

Decided On: 13.02.2023

Suneeta Pandey Vs. State of U.P. and Ors.

Hon'ble Judges/Coram:

Shekhar Kumar Yadav, J.

Citation:  MANU/UP/0211/2023.

Print Page

Supreme Court: In case of gang rape, an act by one is enough to render all in the gang for punishment if they have acted in furtherance of the common intention

 This aspect has also come up for judicial consideration before this Court in Pramod Mahto and Others vs. State of Bihar, (1989) Supp (2) SCC 672 wherein this Court held that the Explanation has been introduced with a view to effectively dealt with the growing menace of gang rape and in such circumstances, it was not necessary that the prosecution should adduce clinching proof of complete act of rape by each one of the accused on the victim or on each one of the victims where there are more than one. {Para 21}

22. Further, in Ashok Kumar vs. State of Haryana, (2003) 2 SCC

143, it was held as under:-

“8. Charge against the appellant is under Section 376(2)(g) IPC.

In order to establish an offence under Section 376(2)(g) IPC,

read with Explanation I thereto, the prosecution must adduce

evidence to indicate that more than one accused had acted in

concert and in such an event, if rape had been committed by

even one, all the accused will be guilty irrespective of the fact

that she had been raped by one or more of them and it is not

necessary for the prosecution to adduce evidence of a

completed act of rape by each one of the accused. In other

words, this provision embodies a principle of joint liability and

the essence of that liability is the existence of common intention;

that common intention presupposes prior concert which may be

determined from the conduct of offenders revealed during the

course of action and it could arise and be formed suddenly, but,

there must be meeting of minds. It is not enough to have the

same intention independently of each of the offenders. In such

cases, there must be criminal sharing marking out a certain

measure of jointness in the commission of offence.”

(Emphasis supplied)

23. In view of this, it is very clear that in a case of gang rape under Section 376(2)(g), an act by one is enough to render all in the gang for punishment as long as they have acted in furtherance of the common intention. Further, common intention is implicit in the charge of Section 376(2)(g) itself and all that is needed is evidence to show the existence of common intention.

24. In this case, as is clear from the sequence of events, the abduction of the victim, her wrongful confinement, her testimony about being subjected to sexual assault clearly points to the fact that the ingredients of Section 376(2)(g) are squarely attracted and the appellant herein along with Jalandhar Kol acted in concert and with a common intention to sexually assault the prosecutrix ‘R’. 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2025

(@ SPECIAL LEAVE PETITION (CRL.) NO. 17398/2024)

RAJU @ UMAKANT Vs THE STATE OF MADHYA PRADESH 

Author: K.V. Viswanathan, J.

Citation: 2025 INSC 615.

Dated: 1 st May, 2025.

Read full judgment here: Click here.

Print Page

Supreme Court: No conviction for an offence under SC& ST Atrocities Act, if prosecution has failed to prove that offence has happened due to victims caste identity

Earlier, in the same judgment, dealing with the situation where

oppression operated at an intersectional fashion, this Court held in

“54. The key words are “on the ground that such person is a

member of an SC or ST”. The expression “on the ground”

means “for the reason” or “on the basis of”. The above

provision (as it stood at the material time prior to its

amendment, which will be noticed later) is an example of a

statute recognising only a single axis model of oppression. As

we have discussed above, such single axis models require a

person to prove a discrete experience of oppression suffered on

account of a given social characteristic. However, when

oppression operates in an intersectional fashion, it becomes

difficult to identify, in a disjunctive fashion, which ground

was the basis of oppression because often multiple grounds

operate in tandem. {Para 41}

The Court notices in Patan Jamal Vali (supra) that the amendment has decreased the threshold of proving that the crime was committed on the basis of the caste identify to a threshold where mere knowledge is sufficient to threshold a conviction. The Court also noticed that presumption in Section 8 which provided that if the accused was acquainted with the victim or his family, the court shall presume that the accused was aware of the caste or tribal identity of the victim unless proved otherwise.

44. Reverting to the facts of this case, we find that there was no evidence to bring the case within the threshold of Patan Jamal Vali (supra). There is no evidence whatsoever to establish the fact that the victims caste identity was one of the grounds for the occurrence of the offence. In the absence of any evidence attracting the offence of Section 3(2)(v), we are constrained to record an acquittal for the appellant from the charge of Section 3(2)(v) of the 1989 Act. {Para 43}

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2025

(@ SPECIAL LEAVE PETITION (CRL.) NO. 17398/2024)

RAJU @ UMAKANT Vs THE STATE OF MADHYA PRADESH 

Author: K.V. Viswanathan, J.

Citation: 2025 INSC 615.

Dated: 1 st May, 2025.

Print Page

Bombay HC: What precautions Session Judge should take while putting question U/S 313 of CRPC to accused?

 I have perused the 313 Cr. P.C. statements of the appellants recorded by the learned Judge. While recording the 313 Cr. P.C. statements of the appellants, the learned Judge did not frame proper questions. The material part of the incriminating evidence adduced by the prosecution was not put to the appellants. In this context, it is necessary to see some of the questions framed by the learned Judge. As stated above, the proof of the identity of the appellants, being the perpetrators of the crime, was the fact in issue. The learned Judge was required to frame proper questions on the basis of the available evidence of the witnesses with regard to their identification. As stated above, the identification of the appellants was established by pointing out their photographs to the prosecutrix. It was not put to the appellants that they were identified by the victim before the Court in a particular manner. The incriminating part of her evidence with regard to the identification of the appellants in the Test Identification Parade was not specifically put to the appellants. It is further seen that the CA reports and the DNA report, being the important pieces of evidence, ought to have been put to them specifically in their 313 statements. Question No. 35 is common for both the appellants. It needs to be extracted. It is as follows:

“Q. No. 35. It has come in the evidence of PW-10 Satish K. Farkade (Ex.97) during investigation he prepared spot panchanama, seizure panchanama. He seized motor cycle, sickle, chapple, godahdi, clothes on the person of victim and muddemal sent for C.A. and obtain C.A. report. What do you have to state about it ?”{Para 29}

30. Perusal of this question would show that the incriminating material in the form of CA reports was put to the appellants in this manner. Perusal of 313 Cr. P.C. statements of the appellants would show that the DNA report was not at all put to them. Even if the appellants had admitted the DNA report, the learned Judge was required to put the same to the appellants in their 313 Cr. P.C. statements. It needs to be stated that, in this case, the appellants have not admitted the DNA report. It is pertinent to mention that, time and again, it has been observed that proper care is not taken while framing the questions in the 313 Cr. P.C. statement of the accused on the basis of the incriminating material. Sometimes, the composite questions are framed. The answer to the part of the question may be in the affirmative and the answer to the part of the question may be in the negative. Such a composite question needs to be avoided. The appellants are the rustic villagers. Similarly, the victim is also a rustic villager. The incriminating circumstances related to the CA and DNA reports had not been put to them. Failure of the learned Judge to follow the provisions of law has caused miscarriage of justice. It has prejudiced not only the appellants but also the victim.

31. In this case, the DNA report has not been put to the appellants. The Hon'ble Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116 : AIR 1984 SC 1622] has held that incriminating piece of evidence, if not put to the accused in his 313 Cr. P.C. statement, cannot be made the basis of the conviction of the accused. It has to be excluded from consideration. It is to be noted that, while recording the evidence, the learned Prosecutor and the learned Judge adopted a very casual and careless approach. The DNA Expert and the Chemical Analyzer have not been examined. The learned Judge, while examining the accused under Section 313 of the Cr. P.C., did not even care to frame a proper question and put the DNA report to the accused so as to enable them to explain it. This has caused prejudice to the appellants. Similarly, it has proved prejudicial to the prosecutrix, who had suffered the ordeal of a horrible incident. She was not at fault. This has resulted into miscarriage of justice.

In the High Court of Bombay

(Before G.A. Sanap, J.)

Criminal Appeal No. 155 of 2022

Puranlal Sakaru Dhurve. Vs State of Maharashtra, 

Criminal Appeal No. 155 of 2022 and Criminal Appeal No. 352 of 2022

Decided on September 30, 2024

Citation: 2024 SCC OnLine Bom 3437.

Read full Judgment here: Click here.

Print Page

Bombay HC: What precautions Session Judge should take while admitting the CA reports and the DNA report?

  The Prosecutor has not examined the carrier, who had deposited the samples with R.F.S.L., Amravati. The Investigating Officer did not produce on record the extract of the Malkhana register. Malkhana in-charge was not examined. It is to be noted that the samples had been collected on or before 6th April, 2016. The samples had been forwarded to the R.F.S.L., Amravati, vide Exh.106 on 11th April, 2016. The prosecution has failed to place on record the evidence with regard to the custody of the samples and the care taken to preserve the samples during this period. If the carrier had been examined, then he would have highlighted the relevant aspects. The CA reports, in this case, are very important. The CA reports had been tendered in the evidence at the time of the examination of the Investigating Officer (PW-10). The learned Judge did not pass a specific order under Section 293 of the Cr. P.C. and admitted these reports in evidence. The CA reports are very important. On the basis of the CA reports, a case is sought to be made out that the blood sample and the semen samples matched with the blood samples of the appellants. {Para 24}

26. The Prosecutor failed to examine the Chemical Analyzer, Amravati, to prove the contents of the CA reports. Similarly, he has failed to examine the DNA Expert from R.F.S.L., Nagpur. It is to be noted that DNA evidence is a scientific opinion. It has to be proved like any other document. The prosecution has to establish the link by adducing cogent and concrete evidence from the time of the collection of the samples till the samples are finally analysed by the F.S.L. In this case, the carrier has not been examined. The Chemical Analyzer has not been examined. Similarly, the DNA Expert has not been examined. 

27. In this case, the important witnesses have not been examined. There is no evidence with regard to the packaging, storage, handling, and preservation of the samples to rule out possibility of tampering or contamination. Perusal of the record would show that there is no reason for non-examination of these witnesses. The learned Judge has placed implicit reliance on the CA reports and the DNA report. The complete DNA report is not part of the record. Therefore, the finding recorded by the learned Judge that the DNA report fully corroborates the testimony of the prosecutrix is without application of mind. It is to be noted that it was the duty of the learned Judge at least to question the Prosecutor with regard to the evidence to prove the contents of these reports. The record shows that the learned Judge, while recording the examination-in-chief of the Investigating Officer, exhibited the CA reports and the DNA report. I fail to understand as to how the Investigating Officer could be the author of the CA reports and the DNA report. The evidence of the Investigating Officer could not be said to be legally admissible evidence to prove the contents of the CA reports and the DNA report. The evidence of the Investigating Officer could be relevant to the extent of the procedural part with regard to forwarding of the samples, preservation of the samples, and the receipt of the DNA report. In such a case, the learned Judge was required to pass a separate order under Section 293 of the Cr. P.C. and admit such scientific evidence in the case. It is to be noted that the helpless prosecutrix had no control over this. The acceptance of the submissions advanced by the learned advocates for the appellants, highlighting the drawbacks and lacunas, would cause miscarriage of justice. The helpless prosecutrix would be deprived of her right to get justice. In my view, this is a very serious matter.

28. Before parting with this subject, I must mention that while admitting the CA reports and the DNA report, without examining the Chemical Analyzer and the DNA Expert, the Court has to pass an appropriate order. First and foremost, the learned Presiding Officer shall insist for the examination of the Chemical Analyzer and the DNA Expert to prove the contents of the reports. The examination of the Chemical Analyzer and the DNA expert, in such a case, can take care of the custody, preservation, and handling of the samples from the time of the receipt till the final analysis of the samples. In my view, this is a very vital flaw in the case of the prosecution, which has been crept in on account of the casual and careless approach of the Prosecutor and the learned Presiding Officer.

In the High Court of Bombay

(Before G.A. Sanap, J.)

Criminal Appeal No. 155 of 2022

Puranlal Sakaru Dhurve. Vs State of Maharashtra, 

Criminal Appeal No. 155 of 2022 and Criminal Appeal No. 352 of 2022

Decided on September 30, 2024

Citation: 2024 SCC OnLine Bom 3437.

Read full Judgment here: Click here.

Print Page

Whether Session Judge can permit prosecution to show photo of accused to victim for his identification?

Learned advocate Mr. R.R. Vyas took me through the entire record and pointed out the material flaws in the case. Learned advocate submitted that, on the date of the evidence of the informant, the appellants were not produced before the Court. It is submitted that the evidence recorded in the absence of the accused was contrary to the mandate of Section 273 of the Criminal Procedure Code, 1973 (for short, “Cr.PC”). Learned advocate submitted that the learned Judge, without insisting for the production of the appellants while recording the evidence of such a star witness, showed some photographs of the appellants from the record to the informant to establish their identification. Learned advocate further submitted that the trial conducted against the appellants was not a fair trial. {Para 8}

 The identification of the accused in the Court has to be strictly proved in such cases. The learned second Judge, who recorded the evidence of PW-4, did not even bother to secure the presence of the appellants. The learned Judge adopted a shortcut method. The learned Judge, instead of securing the presence of the appellants, showed some photographs from the record to the informant. On going through the record, I am shocked that the full-size photographs of the appellants are not on record. The learned Judge has not made a note as to which photographs had been shown to the appellants. It is further seen that those photographs have not even been marked as articles or exhibits.

In the High Court of Bombay

(Before G.A. Sanap, J.)

Criminal Appeal No. 155 of 2022

Puranlal Sakaru Dhurve. Vs State of Maharashtra, 

Criminal Appeal No. 155 of 2022 and Criminal Appeal No. 352 of 2022

Decided on September 30, 2024

Citation: 2024 SCC OnLine Bom 3437.

Print Page

Should the court convict the accused for an offence under SC &ST(Atrocities) Act if the prosecution has failed to prove that the accused was aware that the victim belongs to Scheduled Caste?

Only accused No.2 Nikhil was convicted for the penal

provisions under the Atrocities Act i.e. Section 3(1)(w)(1) and 3(1) (w)(ii). A plain reading of said penal provisions show that accused must know that the woman belong to the Scheduled Caste or Scheduled Tribe. He is also convicted for the offence punishable under Section 3(2)(v) of the Atrocities Act.

These two penal provisions show that at the time of

commission of the offence, the accused must have knowledge that

the victim belongs to either Scheduled Caste or Scheduled Tribe and in spite of the knowledge, he commits the acts which are punishable.{Para 131}

132. As per the Caste Certificate (Exh.21) of the victim, she

belong to the caste which is a Scheduled Caste. Similarly, it is proved on record that accused no.2 is not belonging to Scheduled Caste. Accused no.1 was belonging to Scheduled Caste.

133. After a careful scrutiny of the evidence of the “victim” as

well as “father”, there is noting on record to show that accused no.2 was knowing and/or having knowledge that family of the victim belong to Scheduled Caste. Even learned Additional Public Prosecutor for the State could not point out to us that aspect. If that be so, we are of the view that the learned Special Judge ought not to have convicted accused no.2 Nikhil for the penal provisions under the Atrocities Act.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

: NAGPUR BENCH : NAGPUR.

CRIMINAL CONFIRMATION CASE NO. 01 OF 2020

 State of Maharashtra, Vs  Sagar Vishwanath Borkar,

CORAM : V. M. DESHPANDE and AMIT B. BORKAR, JJ.

Dated: SEPTMEBER 07, 2021

JUDGMENT [Per V. M. Deshpande, J.]

Print Page

When identification of accused by voice should not be relied on?

It was also admitted by the prosecutrix in her cross-examination that she had not clearly seen the face of anyone at the time of occurrence and she could not recognize the persons committing the rape by face, but she could recognize them hearing their voice. If we were to believe that the victim did not have any acquaintance with any of the Accused persons, and that she could not see and recognize the faces of any of the Accused persons at the time of occurrence, it would appear improbable for her to recognize the Accused merely by hearing their voice. There cannot be any dispute that when the persons are known to each other, a person can certainly identify the other person by voice. However, the question of identification by voice has to be dealt with by the Court carefully. In Kirpal Singh v. State of U.P., [MANU/SC/0076/1963 : AIR 1965 SC 712], this Court, while dealing with the question of voice identification, observed as follows:

4. ...It is true that the evidence about the identification of a person by the timbre of his voice depending upon subtle variations in the overtones when the person recognizing is not familiar with the person recognized may be somewhat risky in a criminal trial. But the Appellant was intimately known to Rakkha Singh and for more than a fortnight before the date of the offence he had met the Appellant on several occasions in connection with the dispute about the sugarcane crop. Rakkha Singh had heard the Appellant and his brother calling Karam Singh to come out of the hut and had also heard the Appellant, as a prelude to the shooting referring to the dispute about sugarcane.

In light of the above observations, the Court found that the voice identification of the Accused by a witness, whose credibility had otherwise been accepted by the courts below, was not improbable. This principle was also applied by this Court in Mohan Singh v. State of Punjab, [AIR 2011 SC 3534]. In this case, voice identification was accepted, inter alia, on the ground that there was no evidence adduced to challenge the evidence of the witness that he had acquaintance with the Accused and that he knew the voice of the Accused. The Court also adverted to the decision of this Court in Inspector of Police v. Palanisamy, [MANU/SC/8144/2008 : (2008) 14 SCC 495], wherein it was held that though identification from voice is possible, no evidence had been adduced to show that the witnesses were closely acquainted with the Accused to enable voice identification and that too from very short replies.

Thus, from the above cases we may cull out the principle that identification from the voice of the Accused may be possible if there is evidence to show that the witness was sufficiently acquainted with the Accused in order to recognize him or her by voice.

In the matter on hand, the prosecutrix herself has admitted that there was no acquaintance between the victim and Accused. In such a scenario, it would be difficult for us to accept the version of the victim that she recognized the Accused from their voice. We reiterate the observations in Kirpal Singh (supra) that the identification of a person by the timbre of his voice is risky in a criminal trial, when the identifying person is not familiar enough with the Accused to be able to differentiate between subtle variations in the overtones. In the view of the lack of acquaintance between the prosecutrix and the Accused, it will not be safe for us to accept her version regarding the identity of the Accused, given the absence of a Test Identification Parade.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1095 of 2018 (Arising from SLP (Crl.) No. 8578/2017)

Decided On: 29.08.2018

 Dola  Vs.  The State of Odisha

Hon'ble Judges/Coram:

N.V. Ramana and Mohan M. Shantanagoudar, JJ.

Citation: AIR 2018 SC 4020

Print Page

Criminal Law amendment Act 2018

http://www.prsindia.org/uploads/media/Criminal%20Law%202018/Criminal%20Law%20(A)%20Act,%202018.pdf

 Lok Sabha has passed the Criminal Law (Amendment) Bill 2018 that proposes to enhance punishment for rape of a child. The Bill provides for death penalty as the maximum punishment in cases of rape of a child under 12. The Bill seeks to replace the Criminal Law (Amendment) Ordinance promulgated on April 21 following an outcry over the rape and murder of a minor girl in Kathua in Jammu and Kashmir and the rape of another woman at Unnao in Uttar Pradesh.

Responding to the passage of the Bill in the Lok Sabha on July 30, Minister of State for Home Affairs Kiren Rijiju said that the POSCO was gender-neutral while the new law pertains to girls specifically. The Criminal Law (Amendment) Bill 2018 will amend relevant Sections of the IPC, CrPC and also POCSO Act.

Print Page

Notes on Sexual offences against woman as per Amendment Act 2013

Criminal law amendment Act 2013 has expanded protection to woman against sexual offences and several new offences are brought on statute book.

Earlier provisions dealing with offence of Rape namely

S 375,376,376A,376B,376C and 376D have been substituted by new sections which are as under:

Definition of Rape(S 375)

A man is said to commit rape if he-

a) penetrates his penis,to any extent,into the vagina,mouth,urethra,or anus of a woman or make her to do so with him or any other person;or

b)insert,to any extent,any object or a part of the body,not being the penis,into the vagina,the urethra or anus of woman or make her to do so with him or any other person;or

c)manipulates any part of the body of a woman so as to cause penetration in to the vagina,the urethra or anus of woman or make her to do so with him or any other person;or

d)applies his mouth to vagina,anus, urethra of a woman or makes her to do so with him or any other person,-

Print Page

When court should not raise presumption of consent in case of Gang Rape?

Her
testimony that it took 5-6 minutes to accused Vijay to
convince her to accompany him to Vashisth bath could
have not been considered to arrive at a conclusion that
she was a consenting party to the sexual intercourse
committed by the accused person with her for the
reason that the said accused had asked to accompany
her to Vashisth bath and not Solang Nalla and she
consented only to accompany him and none else. She
may have agreed to accompany accused No. 5 as he
was known to her because as per her version, he offered
himself to solemnize marriage with her. How

accompanying voluntarily with a known person could be
taken to believe that she was a consenting party to
have sexual intercourse with such person; learned trial
Judge has failed to explain. When she never consented
to accompany other accused persons and even for the
commission of sexual intercourse with her by accused
Vijay, therefore, it is established that she objected to and
resisted such ghastly act committed upon her by the
accused persons. In view of evidence on record, her so
called consent was obtained by them under fear of her
own life, causing hurt to her.
38. As noticed hereinabove, the accused have
not denied that they have subjected the prosecutrix to
sexual intercourse. However, their defence is that since
they failed to pay money to her, she demanded from
each of them, therefore, it is for this reason, they have
been implicated in this case falsely. When it is proved
and held by us that she was not a consenting party and
rather subjected to sexual intercourse without her
consent and against her will, therefore, the plea so
raised is hardly of any help to them. It is well settled that

even a woman of easy virtue and for that matter a
prostitute cannot also be subjected to sexual intercourse
against her will and without her consent. Learned trial
Judge has failed to appreciate this aspect of the matter.
Instead of appreciating that nine males have sexually
assaulted a tender aged girl and holding them guilty of
the commission of offence, learned trial Judge has went
on to criticize the prosecutrix. Even if she was of easy
virtue could have never consented to have sexual
intercourse with this much number of persons (accused
herein) i.e., nine. Such an approach of learned trial
Court in this matter cannot be termed as legally and
factually sustainable. The present is a case where sole
testimony of the prosecutrix is sufficient to bring the guilt
home to the accused persons. The Apex Court in State
of Punjab V. Gurmeet Singh and others, AIR 1996 SC 1393
has held that own statement of the prosecutrix if inspires
confidence is sufficient to bring guilt home to the
accused persons.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
 Cr. Appeal No. 264 of 2009
 Reserved on : 16.12.2016
 Decided on: 2nd March, 2017
State of H.P.
V
Raghubir Singh and others 
Coram
 Mr. Justice Dharam Chand Chaudhary, Judge.
 Mr. Justice Vivek Singh Thakur, Judge.

Print Page

How to appreciate electronic evidence of CD in case of gang Rape?

As per the evidence of P.W. 19 Scientific Officer, who issued Ex. P-31 opinion, there is no morphing. Hence, the contention of the learned counsel for the accused that there is morphing in the C.D., in the light of evidence of P.W. 19 and in the absence of any motive on the part of P.W. 1 to implicate them, is liable to be rejected.

40. Further the contention of the learned counsel for the accused A-1 to A-10 is that the evidence of C.D. and the evidence of P.W. 19 are inadmissible in evidence under the provisions of Section 65-B of the Indian Evidence Act. He further contended that as there is no voice evidence on record to prove M.O. 7 is used by A-1 calling the other accused and further there is no material on record to show that M.O. 7 cell phone belongs to A-1, they cannot be convicted. In the present case, as noted above, the crime C.Ds. were sent to FSL and after scientific examination by P.W. 19 with the assistance of other officers, opined that there is no morphing and issued Ex. P-31 and this circumstance corroborates the oral testimony of P.W. 1. The seizure of M.O. 7 from A-1 was made as per his confession in the presence of panch witness P.W. 13, who supported the case of the prosecution. Apart from confession, the other circumstances, particularly the evidence of P.W. 19, who issued Ex. P-31 report based on scientific examination and the consistence evidence of P.W. 1, which is inspiring confidence and in the absence of any motive for P.W. 1 to implicate the accused, the contention of the learned counsel for these accused, merits for rejection.

Equivalent Citation: 2015 (3) ALT (Crl.) 91 (A.P.),2015(4)crimes343 AP

IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH

Crl. A. Nos. 576, 586 and 588 of 2010

Decided On: 08.04.2015

 Peddi Phani Kumar and Ors.
Vs.
 State of A.P.

Coram:G. Chandraiah and M.S.K. Jaiswal, JJ.

Print Page

Punishment to be imparted in case of gang rape

di

 In order to exercise the discretion of reducing the sentence the statutory requirement is that the Court has to record 'adequate and special reasons' in the judgment and not fanciful reasons which would permit the Court to impose a sentence less than the prescribed minimum. The reason has not only to be adequate but special. What is adequate and special would depend upon several factors and no strait-jacket formula, can be imposed. In the case at hand, only reason which seems to have weighed with the trial Court is that the present accused appellant had not actually committed the rape. That cannot be a ground to warrant lesser sentence; more so in view of Explanation (1) to Sub-section (2) of Section 376. By operation of a deeming provision a member of a group of persons who have acted in furtherance of their common intention per se attract the minimum sentence. Section 34 has been applied by both the trial Court, and the High Court, to conclude that rape was committed in furtherance of common intention. Not only was the accused-appellant present, but also he was waiting for his turn, as evident from the fact that he was in the process of undressing. The evidence in this regard is cogent, credible and trustworthy- Since no other just or special reason was given by the trial Court nor could any such be shown as to what ware the reasons to warrant a lesser sentence, the High Court was justified in awarding the mini mum prescribed sentence. That being the position, this appeal is dismissed.

Supreme Court of India

Bhupinder Sharma vs State Of Himachal Pradesh on 16 October, 2003

Equivalent citations: AIR 2003 SC 4684, 2004 CriLJ 1, (2004) 1 GLR 761

Print Page