B.K. Behera, J.
1. The prosecution case presents a sad tale of the victim girl Uma Bala Arora (P. W.2), aged between 18 and 20 years and studying in the S. K. D. A. V. Women's College at Rourkela and residing in one of the two blocks which housed its hostel intervened by a small road with her elder sister Suresh Bala Arora (P. W. 6), also a student of the same college and residing in the same hostel, of monstrous acts of the four appellants, namely, Brjoy Kumar Mohapatra, then aged about 30 years, doing business, Indramani Naik, 'hen aged about 32 years, working as a Helper in the Rourkela Steel Plant, Ganju alias Kamal alias Rajkamal Nandy, a contractor and Pradeep Kumar Das, then aged about 23 years as recorded by the trial court and claimed to be much less before us of which there is no legal evidence, a student who used to roam about near the women's hostel and in that process known to the inmates including the victim girl (P. W. 2) and called Ghoda Muhan (horse-faced). The appellants committed lurking house-tres-pass into the women's hostel in order to commit the offence of kidnapping/abduction and rape of the victim girl Uma Bala, being armed with deadly weapons, such as, knives, at about 0.30 hours of September 26, 1977, having all come on bicycles. They abducted Uma Bala for the purpose of having sexual intercourse with her forcibly by getting her seated on the bicycle of the appellant Bijoy Kumar and taking her away to a field at Jhirpani, situated at a distance of about two and a half kilometers from her hostel threatening her all the way with dire consequences, in spite of the protest and hue and cry raised by Ram Bahadur (P. W. 1), Watcher who had been watching on the verandah of the hostel and Suresh Bala Arora (P. W. 6), Saniukta Mohanty (P. W. 7), Sumitra Dutt (P. W. 9) and other lady students residing in the hostel by keeping the victim girl and these witnesses under grave fear of assault and three of them, namely, Bijoy Kumar, Rajkamal and Indramani committed rape on her at Jhirpani, while the other appellant, namely, Pradeep Kumar, had been asked to stand by and watch persons, if any, coming to that place and the appellants voluntarily caused hurt to the victim girl by means of knives and criminally intimidated her. All the offences had been committed in furtherance of the common intention of all the appellants.
2. On being informed about this incident, P. W. 8, a Lecturer in the S.K.D.A.V. Women's College, contacted the police station and the Deputy Inspector-General, the Superintendent and the Deputy Superintendent of Police at Rourkela on telephone. On the basis of her information, a station diary entry (Ext. ll) was made at the police station and the Police agencies were alerted for the detection of the crime and the criminals. The victim girl Uma Bala, who had been left alone in a helpless condition with profuse bleeding from her person both as a result of multiple injuries inflicied on her and owing to the forcible sexual intercourse by three of the culprits at a time when she was having her monthly menstrual period, had left the place of sexual assault and was moving in great agony when she was seen by the Police Constable (P. W. 14) at about 3 a. m. coming weeping from the Jhirpani side where the crime of rape had been committed towards Sector-20 on the Ring Road having practically no wearing apparels on her person which had been torn and she informed P. W. 14 and his companion Constable that four persons had committed rape on her forcibly. At that time, the Superintendent of Police, the Inspector of Police and others arrived on that spot, some wearing apparels from the hostel were brought and the victim girl put on the clothings over the torn clothings which she was wearing. The Sub-Inspector of Police (P. W. 16), then attached to the Township Police Station at Rourkela, had, in the meantime, rushed to the hostel on receiving information about the kidnapping of a girl by some culprits and at the hostel, the first information report (Ext. 14) was lodged by P. W. 1 and investigation followed in the course, of which, the victim girl and the appellants were medically examined, steps were taken for the identification of the suspects by P. Ws. 1, 2, 6, 7 and 9, the incriminating articles were seized, the confessional statements (Exts. 18 and 19) of two of the appellants, namely, Indramani and Pradeep Kumar, were recorded and on the completion of investigation, a charge-sheet was placed against the appellants who, on their commitment to the Court of Session, stood trial being charged under Sections 458, 366, 324, 506 and 376, all read with Section 34 of the Penal Code.
3. The plea of the appellants was one of denial and false implication. They had asserted that the witnesses identifying them had been shown heir photographs before the test identification parades. The two appellants whose confessional statements had been recorded had asserted that they had made the statements under threat and compulsion by the Police agencies. According to both of them, they were assaulted by the Police authorities and the case of the appellant Indramani was that he had been promised to be set free in case he implicated himself and the co-accused persons.
4. To bring home the charges to the appellants, eighteen witnesses had been examined for the prosecution of whom P. W. 2 was the victim girl and P. Ws. 6, 7 and 9 were the inmates of the hostel. As earlier indicated, P. W. 8, had intimated the Police authorities on telephone about the kidnapping of one of the girl students from the hostel on the basis of which the station diary entry (Ext. 11) had been recorded by P. W. 11, a Sub-Inspector of Police, attached to the Township Police Station, P. W. 1 was the first informant. P. W. 3, was the Doctor who had examined the appellants and P. W. 4 was the Doctor who had examined the victim girl. P. W. 10, a Senior Pathologist in the Ispat General Hospital at Rourkela, had conducted the examination of the vaginal swab of P. W. 2 and Had detected spermotozoa therein. P. W. 12 had testified about the suspicious movements of the appellants Rajkamal and Bijoy Kumar who had stayed in her house and had left it on Friday when the Police authorities came to that place and P. W. 12 had noticed two knives with covers (M. Os. VII and VIII) lying inside the bush of her court-yard and on production these two knives were seized by the Assistant Sub-Inspector of Police attached to the Lephripara Police Station on October 2, 1977. P. Ws. 5 and 15, two Magistrates, had conducted the test identification parades. P. W. 15 had recorded the two confessional statements (Exts. 18 and 19). P. W. 16 had investigated into the case. The appellants had not examined any witness in their defence.
5. On a consideration of the evidence, the learned Sessions Judge found that all the charges against the appellants had been established. For conviction under Section 376 read with Section 34 of the Penal Code, each of the appellants has been awarded the maximum sentence prescribed in law, viz., imprisonment for life. Each of the appellants was sentenced to undergo rigorous imprisonment for a period of 10 years under Section 366 read with Section 34 of the Penal Code and also awarded with the same term of imprisonment under Section 458 read with Section 34 of the Penal Code and to undergo rigorous imprisonment for a period of three years under Section 506 read with Section 34 of the Penal Code and also awarded with the same term of imprisonment under Section 324 read with Section 34 of the Penal Code. It is thus that the matter has come to this Court in three connected appeals out of the same judgment and order of conviction which have been heard together and will be disposed of by this common judgment.
6. The learned Counsel for the appellants have taken us through the evidence and have submitted that none of the charges had been brought home to any of the appellants and it could not be said that any of the offences had been committed, as alleged by the prosecution, in furtherance of the common intention of all the appellants. Mr. Mohapatra for the appellant Pradeep Kumar has strenuously urged that the appellant Pradeep Kumar, a student then, had no hand in any of the crimes alleged against him and he had falsely been implicated in the case. It has been submitted by the learned Counsel for all the appellants that due and adequate precautions had not been taken for the proper identification of the suspects at the test identification parades and as the evidence would show, the identifying witnesses had earlier been shown the photographs and, therefore, the identification at the parades was useless and could not be acted upon. Mr. A. Rath, the learned Additional Standing Counsel has submitted that all the charges had been established.
7. We may point out that specific charge framed against the appellants under Section 458 read with Section 34 of the Penal Code was that they had committed lurking house-trespass. As provided in Section 443 of the Penal Code, 'lurking house-trespass' means committing house-trespass having taken precautions to conceal such house-tres-pass from some person who has right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the trespass. In order to constitute the offence of lurking house-trespass, the offender must have taken some active means to conceal his presence. The mere fact that a house-trees-pass is committed by night does not make the offence one of lurking house-trespass. In the absence of any evidence that the appellants or any of them had taken precautions to conceal house-trespass and in view of the evidence from the side of the prosecution that the four appellants, having been actuated by common intention, committed house-trespass by night openly, the charge under Section 458 of the Penal Code had not been established. It is, indeed, unfortunate that the learned Sessions Judge did not examine this aspect and without proper application of mind, recorded an order of conviction under Section 458 read with Section 34 of the Penal Code. However, the contention raised on behalf of the State that if this Court holds that the charge under Section 458 had not been established, the offence of house-trespass by the appellants having made preparations to cause hurt would come within the purview of Section 452 of the Penal Code, will be examined by us at the appropriate stage.
8. Undoubtedly in a case of this nature, the main evidence is that of the victim girl and her woeful tale up to the point she had been raped may be told in her own words:
I know all the accused persons. On the night of incident i.e., on 25-9-77 I woke up from my sleep inside the hostel at about mid-night when one or two culprits entered inside my room. One of the culprits had a knife in his hand and he was threatening us to come out quietly otherwise we were threatened to be stabbed, I came out of the room taking them to be dacoits. The light was off inside the room. Just outside the room there were two electric lights. The moment I came out of the room, the culprits who had entered inside the room came out of the room. That culprit caught hold of my hand and forcibly took me out towards the fencing of the hostel. I was trying to extricate myself and raised hulla, 'Bachawo, Bachawo'. I noticed another lady student of the hostel Sasmita Mohanty weeping at that time. There was another lady student with her. The culprit, who physically carried me, is accused Raj Kamal Nandi (identified). He asked me to jump over the fence. I sat down. The other accused Bijoy Kumar Mahapatra (identified) was noticed by me then. He told me to scale over the fence. Due to the forcible action, one of my legs was kept on the other side of the fence and one leg on the opposite side. At that time accused Bijaya Kumar jumped over the fence and he dragged me. They dragged me up to the nearby road. There was street light near the place. At that time these two accused persons were present near the fence. Then accused Bijaya Kumar Mahapatra forcibly caught hold of me and put me on the cycle (front side). I fell down on the ground when I was made to sit on the cycle forcibly. I received some scratches due to such draggings. I received some minor injuries when I fell down from the cycle (she shows the knee which was injured). Again I was made to sit down on the front side of the cycle. I raised hue and cry; even so, he was taking me on the cycle by riding on it. He was showing me a knife all along while carrying me on the cycle. I was requesting him to leave me. I noticed two other persons on another cycle following us after I was carried on the cycle about 10 to 15 cubits. Those two persons were Indramani and Raj Kamal (identified). In another cycle accused Pradeep (identified) was also coming. I was taken to a place locally known as Jirpani. I was requesting them to leave me from their clutches. Accused Bijaya was telling me that I should not worry and that he would bring me back to the hostel safely. On the way, accused Bijaya was showing me knife, if I raised any obstruction or alarm.
Describing then about the act of rape on her by three of the appellants when one was standing and guarding the place nearby, P. W. 2 had testified thus:
2. I was taken from the road near Jirpani to an open field where some bushes were lying. I tried to run away when I reached that place, but all of them caught hold of me by running. Two of them caught hold of my hands and two of them any legs. I cannot identify which of the accused persons caught hold of my hands and which of them caught hold of my legs as it was dark. They made me naked by tearing my wearing apparels and that too, with the help of knives. They closed my mouth with some handkerchief. When I wanted to throw the handkerchief they gave me blow at my teeth, eyes and face. While assaulting me, they were dragging me to a ditch.
3. Some of them pushed a cloth up to my throat. They then wrapped a cloth round my mouth and they tied another piece of cloth on my neck; so too, my hands. I was unable to move. While resisting they gave me knife-blows on my face, forehead, hands, upper arm, thigh and other parts of my body.
4. Accused Bijaya Kumar Mahapatra committed sexual intercourse with me first. Then accused Raj Kamal Nandi, next Indramani Naik committed sexual intercourse with me. I sustained injuries on my private part due to forcible sexual intercourse. The other accused Pradeep Kumar was asked to stand at a distance with a knife to guard against intruders.
5. After commission of the sexual intercourse, accused Bijaya Kumar gave me threats to keep quiet. He unwrapped and untied the clothes round my mouth, neck and hands. They left me there and then they all went away.
6. Then, with heavy bleeding on my private part and other parts of the body I came up to the road and started walking with difficulty. I came up to the water tank when I met two police Constables. A jeep was passing by that side. On hearing my cries, the Constables came towards me and I narrated the incident to them. The S. P. and the hostel warden, who were the jeep inmates, had sent for my sarees and clothes from the hostel. I put on my clothes. I went to the spot with the S. P. and pointed out the place. I was then carried to the I.G.H.
7. The I. O. examined me at the I.G.H. I was medically examined there. I had not known or seen any of the accused persons except Pradeep Kumar Das before the incident.
8. I identified these accused persons in the T. I. Parade. The accused Pradeep Kumar Das is popularly known as Ghoda Moha in the hostel.
9. It has been submitted before us on behalf of the appellants that the evidence of P, W. 2 has not received corroboration connecting the appellants with the crimes and that the evidence of the Doctor who has examined the appellants and that of the Doctor who had examined the victim girl would negative a case of rape as injuries in the course of struggle by the victim girl had not been noticed on the persons of the appellants and if three appellants had committed sexual intercourse forcibly on the victim girl, the latter would have sustained graver injuries than the injuries found in her private part by the Doctor (P. W. 4). It has been submitted in the alternative that even assuming that some person or persons had committed sexual intercourse with P, W. 2, it could be with her consent.
10. In a case of rape, consent, if any, given by the victim must be voluntary. A mere act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance or passive giving in, when volitional faculty is either crowded by fear or vitiated by duress, cannot be deemed to be 'consent'. Consent on the part of a woman, as a defence to an allegation of rape, requires voluntary participation after having fully exercised the choice between resistance and assent. The question of consent or compulsion is to be judged on a careful consideration and scrutiny of the evidence of the victim and from other corroborative evidence, if available and the attendant circumstances preceding, accompanying or following the acts of sexual intercourse. In the instant case, as found by the Radiologist as per his report (Ext. 7), the age of the victim girl was above 18 years and below 20 years, but the Radiologist had not been examined. For the reasons to follow, we are in complete agreement with the learned Sessions Judge that the question of consent in this case did not arise and P. W. 2 had been ravished brutally against her consent. True, as has been observed in the case of Tukaram v. State of Maharashtra : 1978CriLJ1864 , in a case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. But as has been observed in the case of Rafiq v. State of U.P. : 1980CriLJ1344 , the absence of injuries on the person of the victim girl may not be fatal to the prosecution and corroborative evidence may not be an imperative component of judicial credence in rape cases. Corroboratian as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of, law, but a guidance of prudence under given circumstances. Indeed, from place to place, from age to age, from varying life-styles and behavioural complexes, inferences from a given Set of facts, oral and circumstantial, may have to be drawn not with dead uniformity, but realistic diversity lest rigidity in the shape of rule of law in this area be introduced through a new type of presidential tyranny. The same observation holds good regarding the presence or absence of injuries on the person of the aggressor or the aggressed. The court cannot cling to a fossil formula and insist on corroborative testimony, even if, taken as a whole, the case spoken to by the victim strikes a judicial mind as probable. In the case of Krishan Lal v. State of Haryana : 1980CriLJ926 , Hon'ble Krishna Iyer, J., speaking for the Court observed (Para 4):
We must bear in mind human psychology and behavioural probability when assessing the testimonial potency of he victim's version. What girl would foist a rape charge on a stranger unless a remarkable set of facts or clearest motives were made out? The inherent bashfulness, the innocent naivete and the, feminine tendency to conceal the outrage of masculine sexual aggression are factors which are relevant to improbabilise the hypothesis of false implication. The, injury on the person of the victim, especially her private parts, has corroborative value. Her complaint to her parents, and the presence of blood on her clothes are also testimony which warrants credence. More than all, it baffles belief in human nature that girl sleeping with her mother and other children in the open will come by blood on her garments and injury in her private parts unless she has been subjected to the torture of rape. And if rape has been committed, as counsel more or less conceded, why, of all persons in the world, should the victim hunt up the Petitioner and point at him the accusing finger? To forsake these vital considerations and go by obsolescent demands for substantial corroboration is to sacrifice commonsense in favour of an artificial concoction called 'Judicial' probability. Indeed, the court loses its credibility if it rebels against realism. The law court is not an unnatural world.
11. The prosecutrix cannot be considered to be an accomplice. The Court should normally look for some corroboration of her testimony in order to satisfy itself that the prosecutrix is telling the truth and that a person, accused of abduction or rape, has not been falsely implicated. The only rule of law is the rule of prudence, viz., the advisability of corroboration should be present in the mind of the Judge. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand. As to what type of corroboration may be required when the court is of the opinion that it is not safe to dispense with that requirement, it has been laid down that the type of corroboration required must necessarily vary with the circumstances of each case and also according to the particular circumstances of the offence with which a person is charged See Rameswar v. State of Rajasthan : 1952CriLJ547 , Sidheswar Ganguly v. State of West Bengal : 1958CriLJ273 , Gurcharan Singh v. State of Haryana : 1973CriLJ179 and Madho Ram v. State of U.P. : 1973CriLJ673 . It must, however, be kept in mind that if the circumstances negative the existence of fear and story of passive submission as provided in Section 375, the case cannot be said to be one of rape punishable thereunder See : 1978CriLJ1864 (supra). Keeping the aforesaid principles in mind with regard of the appreciation of the evidence of the prosecutrix in a case of this nature, we would now proceed to examine as to whether and how far the evidence of P. W. 2 could be acted upon.
12. Having carefully examined the evidence of P. W. 2 and in particular, the long drawn out cross-examination of this witness, we find that her evidence is true and reliable and the other evidence on record would provide not only general, but adequate corroboration of her testimony. There is nothing to show that this witness had any axe to grind against any of the appellants and as a matter of fact, the appellants other than the appellant Pradeep Kumar were strangers to her and she had known Pradeep Kumar, as the evidence would show, because he was in the habit of loitering near about the women's hostel and was being called Ghoda Muhan (horse-faced) by the hostellers. As her evidence would show, she had no sexual intercourse with anyone on any earlier occasion and this evidence of hers gets assurance from the evidence of the Doctor (P. W. 4) who had noticed tears in her hymen at two positions which would give an indication that her story in the court in this regard was true. There was adequate light near the hostel and on the roads where she had been carried by the appellant Bijoy Kumar in company with the three other appellants. In the absence of evidence to show that some persons had noticed the movements of the appellants carrying P. W. 2 with them at such part of the night on the road leading to Jhirpani, no comment can legitimately be made that the prosecution had not examined persons who might have seen the appellants and P. W. 2 while the latter was being forcibly carried away. The activities of the appellants at the hostel had taken 10 to 15 minutes, as the evidence would indicate and she had gone all the way to a distance of about two and a half kilometres along with the appellants and street lights were on. As her evidence would show, there had been street lights up to the road portion although there was no electric light at the open field where she was ravished. She had, therefore, plenty of opportunity to identify the culprits. Two of them had entered the hostel and all of them had taken her to the place of rape, Bijoy Kumar carrying her on his bicycle threatening her all the way. As the almanac would show, it was the 13th day in the bright fortnight and therefore, the evidence of P. W. 2 that it was a moonlit night for which she could identify the culprits at the place of rape must be taken as true.
13. The evidence of P. W. 2 that all the appellants made her naked by tearing her wearing apparels with the help of knives after two of them caught hold of her legs and two of them her hands would find assurance from the evidence of the Police officials who had seen her torn clothes at about 3 a.m. while she was moving in agony after the sexual assault on her was over and the culprits had left the place. M.O.I was the Kurta, M.O. II was the Pyjama and M.O. III was the underwear which she was wearing at the time of commission of rape. These articles had been seized in the course of investigation.
14. Her evidence did get full assurance from the medical evidence. P. W. 4 had examined her on 26-9-1977 and had noticed as many as twenty-three injuries on her person. Eight injuries, as noticed from Ext. 5/1, the medical report, were cut injuries and all the injuries were fresh by the time of his examination. The cut injuries, according to P. W. 4, were possible by sharp cutting weapon, such as, knife and the other types of injuries were abrasions, contusions etc. which were possible by coming in contact with hard and blunt substance. Some of the injuries were bleeding and P. W. 4 had stitched some injuries. This Doctor had collected vaginal swab (M.O. IV) for pathological examination, pubic hairs (M.O. V) and vaginal smear (M.O. VI) and as earlier indicated, P. W. 10 had found spermatozoa in the vaginal swab. It has been submitted on behalf of the appellants that not many injuries were there in the vagina of P. W. 2 although three aggressors had committed sexual assault and the evidence of P. W. ?, was that she had been resisting by her legs which were free. The circumstances in which P. W. 2 had been placed at the time of the commission of the rape when her hands and neck had been tied and her mouth had been gagged and she had received a number of cut injuries on her person should be visualised while considering as to what extent this helpless and defenceless girl would be able to resist. The resistance, if at all, would be very slight and in that case, not only she was not likely to have more number of injuries in her vagina, but injuries were not likely also to have been caused on the persons of the three aggressors. It would, however, be noticed from the evidence of P. W. 3, the Doctor who had examined the four appellants, that one of them, namely appellant Bijoy Kumar who as the evidence of P. W. 2 would clearly show, had taken an active part in the commission of crimes throughout did have marks of multiple abrasions over the abdomen, forearm and legs which might have been due to coming in contact with hard and rough substance. True, there was no mark of violence on the genitalia of the four appellants as testified by P. W. 3, but on the facts and in the circumstances of the case, this could not negative the offence of rape having been committed by three of the appellants. The appellant Indramani was examined on 28-9-1977, i.e., two days after the occurrence and 'he appellants Bijoy Kumar and Rajkamal were examined on 3-10-1977 after they were arrested. The absence of smegma around the corona gland of these appellants, who had been examined after considerable time, could not negative the case of the prosecution that they had sexual intercourse with P. W. 2 during the night of the 25th/26th Sept., 1977. That apart, absence of smegma is not always a sure ground for negative recent sexual intercourse. It would thus be seen that the evidence of P. W. 2 had found support and assurance from the evidence of the two Doctors P. Ws, 3 and 4 and the Senior Pathologist (P. W. 10).
15. There was, in addition. the evidence of P. W. 1 and that of P. Ws. 6, 7 and 9 with regard 'o the first part of the occurrence, i.e., up to the time P. W. 2 was whisked away on the road. According to P. W. 1, the Watchman, two persons scaled over the fencing made of wire nets and he had identified the appellants Rajkamal and Bijoy Kumar as those two persons. He had testified that the appellant Bijoy Kumar had shown the knife at him when he caught hold of this appellant and the appellant Rajkamal brought Uma Bala from her room and forcibly lifted her and took her away. His evidence would also show that he raised a hulla and he also heard a hulla, 'Bachao, Bachao' (save us) from the hostel. His evidence would show that the electric lights were on. The appellant Pradeep, according to this witness, was standing just near the entrance gate. The entire incident inside the hostel, according to the estimation of this witness, had taken about 5 to in minutes. According to P. W. 6, the elder sister of P. W. 2, at about midnight while she with some others had been reading on the verandah of the hostel wi'h tube lights burning, four boys came on bicycles on the road, one of them being the appellant Pradeep and she was informed by Sanjukta that two of the boys showed their fingers towards them and owing to fear they got into the room chaining it from inside and soon thereafter, they heard the cry 'Bachao, Bachao'. She had identified the appellant Pradeep Kumar in the test identification parade. Her evidence of identification of this appellant in the court was substantive evidence and if as the circumstances would show, the hostellers had known the appellant Pradeep Kumar from before, there was no point in putting this appellant also as one of the suspects to be identified in the parade. P. W. 7 had testified thus:
I identify accused Bijaya Kumar Mahapatra, Rai Kamal and Pradeep Kumar Das.
2. On the night of 25th/26th Sept, 1977, at about 12.30 a.m., myself P. W. 6 and two others were reading on the verandah of the College hostel. I was sitting at a distance from the rest three. Four boys in some cycles passed on the road in front of the hostel. Out of them I knew accused Pradeep Kumar (identified) who is popularly known as 'Ghoda Muha'. They were proceeding from west to east on the road. Out of those four, two of them came close to the three inside the hostel and told me in a low tone 'Hear us, hear us' (Suno, Suno). I informed the fact to the other three colleagues. Thus we hurried to the room. We entered the room where I was residing. After entering inside the room, Gitanjali chained the doors from inside. The window of the room was open. The other room was dark as the light was off. Within four to five minutes thereafter, we heard the weeping of different students and we heard the sounds and voice 'Umaku neigole, Umaku neigole'. Then we came out of the room. The boarders in general said that Uma had been taken away.
3. I identified these three in the T. I. Parade held before the Magistrate.
The evidence of P. W. 9 was as follows:
2. On 25/26-9-1977 night, at about midnight, the incident took place. I woke up hearing some sounds. I noticed a boy standing near the door of that room. I peeped through the gap in between the door and the screen and could see him. He entered inside that room. That boy threatned us to keep quiet and to come close to him Then he retreated to the verandah. That boy again came inside the room. I woke Sasmita up and addressed the boy as to why he had made his entry into the room. Sasmita went inside the bath-room out of fear. Then the boy went upon the cot of mine and challenged Sasmita as to why she was going to the bath-room. I came out of the room out of fear. Accused Raj Kamal Nandy is that boy (the witness identifies him).
3. Another boy was noticed by me on the verandah and caught hold of the neck of P. W. 1 on the verandah and challenging him. to keep quiet or else he would kill him. That boy is accused Bijaya Kumar Mahapatra (the witness identifies him). Out of fear, I suddenly jumped over the fence and proceeded towards the other block. I noticed another boy on the road side I could notice him in the street light He is accused Indramani (the witness identifies). While going to the other block I noticed accused Pradeep Kumar Das (the witness identifies) detaining the watchman of the other block. I then jumped over that fence and went to that block, raised hulla to draw the attention of the inmates and narrated the incident to the Lecturers. They woke up after hearing my shouts. Then I learnt through the voice of different boarders that p. W. 2, had been taken away by the culprits.
4. P. W. 2, P. W. 6 and myself were the roommates. Sanjukta (P. W. 7) is a boarder of the adjoining room.
5. I identified the accused persons in the Jail in a T. I. Parade....
16. No infirmites are noticed in the evidence of any of these inmates, of the hostel, namely, P. Ws. 6, 7 and 9. They were natural and competent witnesses and had deposed to facts seen by them which they could and had properly identified the appellants in the Court and in the test identification parades. The evidence of these natural and disinterested witnesses is not to be thrown out merely because of some inconsequential omissions in their statements to the Investigating Officer with regard to minor details and not in respect of material particulars or the identity of the appellants. In this connection, some observations of the Supreme Court in the case of Matadin v. State of U.P. : 1981CriLJ740 may usefully be kept in mind. Their Lordships observed (Para 3):
The Sessions Judge did not realise that the Statements given by the witnesses before the Police are meant to be brief statements and could not take the place of evidence in the Court. Where the omissions are vital, they merit consideration, but mere small omissions are vital, they merit consideration, but mere small omissions will not justify a finding by a Court that the witnesses concerned are self-contained liars.
17. Comment has been made at the Bar that the test identification parades conducted by P. Ws. 5 and 15, the two Magistrates, had not been done by taking adequate precautions and the photographs of the appellants had been shown to the identifying witnesses before the parades. P. W. 15 had conducted the test identification parade on 12-10-1977 inside the Rourkela Special Jail for the identification of the four appellants as the suspects put at the parade by Ram Bahadur (P. W. 1), Sanjukta Mohanty (P. W. 7) and Sumitra Dutt (P. W. 9) and some others and Ext. 13 was his report, p. W. 7 identified the appellants Bijoy Kumar, Pradeep Kumar and Rajkamal, P. W. 9 identified all the four appellants. P. W. 1 identified the appellants Bijoy Kumar, Pradeep Kumar and Rajkamal. P. W. 5 had conducted the test identification parade also inside the Rourkela Special Jail on 17-10-1977 and at the parade, the victim girl Uma Bala (P. W. 2) identified all the appellants as the culprits and Suresh Bala Arora (P. W. 6) identified the appellant Pradeep Kumar. The evidence of P.Ws. 5 and 15 would show that they had observed the required formalities before and at the time of conducting the test identification parades. Our attention has been invited to a statement made by P. W. 1 in his cross-examination as follows:
It is a fact that the I. O. showed me the photos of the accused persons. He also showed the photos of the accused persons to the lady students. I could recognise the three accused persons because I had refreshed my memory to the photographs shown to me....
This witness was put leading questions by the prosecution under Section 154 of the Evidence Act and cross-examined by it and while under cross-examination by the prosecution, he had stated thus:
In between the date of incident and the T. I. parade I was not shown any photographs of the accused persons by the I. O. To my knowledge the I. O. also did not show any photographs of the accused to the lady students....
It would thus be seen that this witness had made prevaricating statements as to whether he and some of the other witnesses had been shown the photographs of the appellants prior to the test identification parades, p. Ws. 2, 6, 7 and 9 have denied the suggestions made from the side of the defence that they had seen the photographs prior to the test identification parades. There is no reason for us to discard the evidence of these girls in this regard and in view of the conflicting statements made by P. W. 1, we would accept the evidence of P. Ws. 2, 6, 7 and 9 in this regard and hold that the photographs of the appellant had not been shown to the identifying witnesses prior to the identification proceedings. It may not be out of place to mention here that no specific suggestion had been made to the Investigating officer (P. W. 16) during his cross-examination that he had shown the photographs of the appellants to the identifying witnesses. On the other hand, a suggestion had been made to him that he had introduced the appellants to the identifying witnesses before the test identification parades were conducted and this was denied by him The evidence of P. W. 2 would show that straight from the hospital, she was taken to the jail premises for the purpose of test identification and she identified the appellants.
18. The substantive evidence of a witness as regards identification is a statement made in the Court. The evidence of mere identification of an accused person at the trial for the first time is from its very nature inherently of a weak character. In order to carry conviction, the evidence should ordinarily show as to how and under what circumstances, the witness came to pick out a particular accused person and the details of the part which the accused had played in the crime in question with reasonable particularity. The purpose of test identification parade seems to be to test and strengthen the trustworthiness of the evidence given in the court. As a safe rule of prudence, it is considered necessary to generally look for corroboration of the sworn testimony of a witness in the Court as regards the identity of the accused who is a stranger to him in the form of an earlier test identification proceeding. There may, however, be exceptions to this general rule, when the court is impressed by a particular witness on whose testimony it can safely rely without such or other corroboration keeping in view the purpose of identification parades, the Magistrates holding them are expected to take all possible precautions to eliminate suspicions of unfairness and to reduce the chances of testimonial error. The power to identify varies according to the power of observation and memory of the person identifying and each case depends on its own facts, but there are two factors which seem to be of basic importance in the evaluation of identification evidence. The persons required to identify an accused should have had no opportunity of seeing him after the commission of the crime and before the identification and no mistakes are, made by them or the mistakes made are negligible. The identification to be of value should also be held without much delay (See Budhsen v. State of U.P. : 1970CriLJ1149 , Hasib v. State of Bihar : 1972CriLJ233 , Chander Singh v. State of U.P. : 1973CriLJ926 , Samant Tatyada Sinde v. State of Maharashtra : 1974CriLJ674 and Sidha Dehury v. State 1982 Cri LJ 500 : 1981 52 Cut LT 512 : 1981 Cut LR (Cri) 267.
19. Judged in the light of the aforesaid principles, it would be seen that P. Ws. 1, 2, 6, 7 and 9 had properly identified the appellants at the trial having identified them in the earlier test identification proceedings which had been conducted after taking due legal precautions. We may state here at the cost of repetition that it was not necessary to put the appellant Pradeep Kumar at the test identification parade by including him among the suspects to be identified by the girl hostellers as this appellant was known to them. It could be that because P. W. 1 was also to identify the suspects and there was nothing to show that he had known him earlier, this appellant had been put during the test identification proceedings as one of the suspects. This, however, would not affect in any manner the evidence of P. Ws. 2, 6, 7 and 9 with regard to the identification of this appellant.
20. It has been submitted before us on behalf of the appellant Pradeep Kumar that although he had been known to P. W. 2 from before, when P. W. 2 saw P. W. 14 after the occurrence, she had given out that four persons committed rape on her, but had not specifically named this appellant. P. W. 2 had met P. W. 14 when she was in great agony with multiple injuries on her person after sexual assault by three persons against her will and without her consent and merely because at that point of time, P. W. 2 did not specifically state the name of any of the culprits, her entire body of testimony as to the complicity of this appellant was not to be thrown out,
21. In addition to the aforesaid items of evidence, there was the evidence of P. W. 12, a resident of Karankol, that during the night of Thursday, the appellants Rajkamal and Bijoy Kumar went to her house and wanted to stay there and took some food and went to bed. Next morning they were offered some tiffin and tea. They stayed during the night of Friday when the Police people arrived at the place and when the Police authorities searched for them these two appellants had 'bolted away' from the house. They were not found and they were searched for. She noticed that two knives with covers (M. Os. VII and VIII) were lying inside the bush of her courtyard (Bari). These articles, on production, had been seized by the Assistant Sub-Inspector of Police (P. W. 13) on 2-10-1977, as per Ext. 12. This was another important guilt-pointing circumstance against these two appellants.
22. It may be stated here that the appellant Indramani had made a confessional statement (Ext. 18) and the appellant Pradeep Kumar had also made a confessional statement (Ext. 19) before the Judicail Magistrate (P. W. 15). The assertions made by these two appellants that they had been threatened and coerced for making confessional statements would not be borne out from the record. The two confessional statements would show that the statements had properly been recorded after due and adequate precautions having been taken by P. W. 15 who had given his identity to these two appellants and had warned them by saying that if they made any confessional statement, it would be used against them in evidence. The confessional statements had, in our view, been made voluntarily by these two appellants. The appellant Indramani had admitted to have accompanied the dther appellants and to have committed rape on the victim girl, in Ext. 18. The appellant Pradeep Kumar had also admitted to have accompanied the appellants. Their confessional statements would show as to how the victim girl had been abducted from the hostel. Thus the evidence of P. W. 2 with regard to the complicity of the appellant Indramani had also found assurance from the confessional statement (Ext. 18) and her evidence with regard to the complicity of the appellant Pradeep Kumar would find corroboration from the confessional statement (Ext. 19). As we find from the judgment, a passing reference was made to the confessional statement of the appellant Pradeep Kumar and the other confessional statement was not even referred to in the judgment. This was, indeed, not proper as these were valuable pieces of evidence from the side of the prosecution.
23. As regards the complicity of the co-accused persons, the confession of a co-accused person has to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence. Thus such a confession may be regarded as evidence in that generic sense because of the provision of Section 30 of the Evidence Act, but the fact remains that it is not evidence as defined in Section 3 of the Evidence Act. In dealing with a case against an accused person, the Court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. Thus the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept the other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence See Haricharan Kurmi v. State of Bihar : 1964CriLJ344 . In the instant case, there is sufficient other evidence regarding the complicity of the co-accused persons and the confessional statements made by the appellants Indramani and Pradeeo Kumar would lend assurance to the other evidence regarding the complicity of the co-accused persons. These confessional statements may, therefore, be pressed into service to that limited extent which the learned Sessions Judge had not done.
24. Mr. Mohapatra, on behalf of the appellant pradeep Kumar, has submitted that the intention of the other three co-accused persons when this appellant was standing by could be to commit the offence of murder or robbery and not necessarily the commission of the offence of rape and in the absence of evidence to show that this appellant had shared the intention of the other co-accused persons regarding the commission of a particular offence, he could not be saddled with constructive liability in respect of the commission of the offence of rape. The evidence of P. W. 2, already quoted in this judgment, would tell its own tale and would clearly show that the common intention of all the appellants including this appellant was to commit rape on the victim girl. This appellant did not commit rape on P. W. 2 but he did share the common intention of the other co-accused persons for the commission of the offence of rape and stood nearby guarding against the entry of others. As has been observed by the Judicial Committee of the Privy Council in the well-known case of Barendra Kumar Ghose v. Emperor AIR 1925 PC 1 : 1925 26 Cri LJ 431, Section 34 deals with the doing of separate acts similar or diverse by several persons; if all are done in furtherance of a common intention, such person is liable for the result of them all as if he had done them himself, for 'that act' and 'the act' in the latter part of the section must include the whole action covered by 'a criminal act' in the first part because they refer to it has been observed therein that in crimes as in other things 'they also serve who only stand and wait'.
25. The common intention referred to in Section 34 presupposes a prior concert, a prearranged plan, i.e., a prior meeting of minds, This does not mean that there must be a long interval of time between the formation of the common intention and the doing of the act. It is not necessary to adduce direct evidence of the common intention. Indeed in many cases, it may be impossible to do so. The common intention may be inferred from the surrounding circumstances and the conduct of the parties. See Rishideo Pande v. State of Uttar Pradesh : 1955CriLJ873 . A person does not do an act except with a certain intention and the common intention which is requisite for the application of Section 34 is the common intention of perpetrating a particular act. Previous concert which is insisted upon is the meeting of the minds regarding the achievements of a criminal act (See Afrahim Sheikh v. State of West Bengal : 1964CriLJ350 .
26. In the instant case, we have earlier indicated and we repeat that the four appellants had come together armed with knives and after committing abduction and house-trespass having made preparations for causing hurt, carried' the victim girl all the way to a long distance from the hostel, causing hurt and intimidating her and made her to lie on the ground after she was assaulted and after her mouth was gagged and her neck and hands were tied and with the appellant Pradeep Kumar standing nearby, three of the appellants ravished her against her will and without her consent; The acts of the appellants preceding, accompanying and following the acts committed by them would undoubtedly establish that they had the common intention to commit the offences. All the appellants had the common intention to commit the particular act of rape and there could be no doubt that they had made a prearranged plan and there had been meeting of minds for the commission of this offence. It cannot, therefore, reasonably be said, by accepting the contention raised on behalf of the appellant Pradeep Kumar, that he had not shared the common intention for the commission of the offence of rape. The order of conviction passed against all the appellants under Section 376 read with Section 34 of the Penal Code was, therefore, justified on facts and sustainable in law.
27. We thus find, on a careful consideration of the evidence on record, that having made preparations for causing hurt and being armed with knives, the four appellants had joined hands and gone together and two of them entered the hostel and as the evidence would clearly indicate, the other two guarded outside and they had, therefore, committed an offence of house-trespass punishable under Section 452 read with Section 34 of the Indian Penal Code. In the absence of evidence that the victim girl was aged under 18 years, it could not legally be said that the appellants were guilty of kidnapping her, but the evidence would undoubtedly establish that they had abducted P. W. 2 with intent that she would be forced to illicit intercourse and therefore, the appellants could legally be convicted for having committed the offence of abduction in furtherance of their common intention punishable under Section 366 of the Penal Code. P. W. 2 had been assaulted by cutting instruments. Some of the appellants had gone armed for the purpose of abduction of P. W. 2 so that she would be forced to illicit intercourse and while carrying out these purposes and even at the place of rape, hurt had been caused to her and she had been intimidated criminally and therefore, by the application of Section 34 of the Penal Code, the appellants could be and had properly been convicted under Sections 324 and 506, both read with Section 34 of the Penal Code. We have also no doubt in our mind and the evidence justifies a conclusion that three of the appellants, namely, Bijoy Kumar, Rajkamal and Indramani committed rape on the victim girl (P. W. 2) with the active connivance of the appellant Pradeep Kumar and in his presence. This appellant along with others had caught hold of the victim girl before the commission of rape and had taken part in tearing her clothes by means of knives and at the instance of the other appellants, stood by guarding against the entry of outsiders to the place of sexual assault and by these acts, we are clearly of the view that he had shared the common intention, with the other appellants also in respect of the commission of the offence of rape.
28. Having held that appellants guilty of the charges from which their conviction had been recorded except with regard to the charge under Section 458 which we have altered to one under Section 452, we have now to judge as to what would be the appropriate sentences to be passed against the appellants for the commission of the offences. It has been submitted on behalf of the appellants that if the appellants are ultimately found to be guilty and we have so found, the maximum sentence of imprisonment for life which, of course, a court is entitled to inflict under the law, was not called for and that in the absence of evidence to show that they had been indicted or accused of such offences in the past, a lesser sentence would meet the ends of justice, We are entirely in agreement with the learned Sessions Judge that the appellants had committed most heinous and dastardly acts by committing house-tres-pass into the women's hostel past midnight and by the show of force and being armed with knives, they abducted a simple and innocent girl student staying in that hostel for the purpose of forcing her to sexual intercourse and then having carried her by the show of knives and after causing hurt to her, a brutal act of sexual assault by three of the appellants had been committed on her while the other appellant was guarding nearby. The victim girl was armless and defenceless and an outrageous sexual assault had been committed on a young student after abducting her from the hostel where her parents had kept her for study in the college. Such heinous acts do deserve severe condemnation. The appellants must be visited with appropriate and deserving sentences.
29. The offence of rape is punishable under Section 376 of the Indian Penal Code with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. 'While as a legal course, the punishment of imprisonment for life can be imposed, regard being had to the facts and circumstances of the case, we are of the view that the maximum sentence of imprisonment for life may not be awarded, but nothing short of the maximum of the alternate sentence, viz., imprisonment for a term which may extend to ten years, should be imposed against each of the appellants taking into consideration the cruel and brutal crime committed by them. In a case of this nature, the court has a duty to the society and social justice should be done within, of course, the legally permissible limits.
30. In the result, the appeal is allowed in part. The order of conviction and sentence passed against the appellants under Section 458 read with Section 34 of the Penal Code is set aside and in lieu thereof, each of the appellants is convicted under Section 452 read with Section 34 of the Penal Code. The order of conviction passed against each of the appellants under Section 376 read with Section 34, Section 366 read with Section 34, 324 read with Section 34 and Section 506 read with Section 34 of the Penal Code is maintained. For their conviction under Section 376 read with Section 34 of the Penal Code, each of the appellants is sentenced to undergo rigorous imprisonment for a period of ten years. No separate sentences need be passed and are not passed against them for their conviction under Sections 366, 324, 452 and 506, all read with Section 34 of the Penal Code. The petitioners other than the petitioner Pradeep Kumar Das are in custody. The petitioner Pradeep Kumar Das, who is on bail, shall now surrender to serve out the sentence.
N.K. Das, J.
31. I agree.