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Gopi Shanker and ors. Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberCriminal Appeal Nos. 2, 13, 22, 82, 83, 70 and 213 of 1966
Judge
Reported inAIR1967Raj159; 1967CriLJ922
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 32 and 164; Evidence Act, 1872 - Sections 5, 133 and 157; Indian Penal Code (IPC), 1860 - Sections 375 and 376
AppellantGopi Shanker and ors.
RespondentState of Rajasthan
Appellant Advocate Bhimraj, Adv. in No. 2/66,; L.R. Kalla, Adv. in No. 3/66,;
Respondent Advocate Har Nath Calla, Adv.
DispositionAppeal partly allowed
Cases ReferredState v. Rameshwar
Excerpt:
- - he was, however, not satisfied with the explanation and gave a threat that he would inform the police. he also found soda bottles, two bottles like that of beer, one small bottle in which there were some drops of wine and glasses. two pieces of cloth like handkerchief were also noticed there and were suspected of being stained. draupdi and other persons were taken to the police they were beaten up and asked to falsely implicate the accused gopi shanker and other so that the police as well as the prosecutrlx might be able to make some money. and for all purposes on account of fear and the effect of wine and the suddenness of the situation she was made to submit herself to the inevitable satisfaction of lust of gopi shanker, who not being satisfied once had one more go at her......l.n. chhangani, j.1. these seven appeals are directed against the judgment and order of the additional sessions judge no. 1, jodhpur, dated 23rd of december, 1965. in sessions case no. 16 of 1965/31 of 1965 the additional sessions judge tried the seven appellants for offences under sections 376, 342 and 323, indian penal code. after trial, he found them all guilty and convicted them and awarded sentences as detailed below :-- gopi shankeru/s 376, p.o. 5 years r. i. & fine of rs. 500/-; in default, one year's r.i. u/ss 342 |6 months r.i. &fine; of rs. 50/-; in default, two month r. i. on each count.323 | r/w 34 | mahesh chand u/s 376 5 years r.i. &fine; of rs. 100/-; in default, six months r.i.shiv kumar | dhan singh | sher singh | tulsi ram | u/ss 342 | 6 months r i. &fine; of r. 50/-;.....
Judgment:

L.N. Chhangani, J.

1. These seven appeals are directed against the judgment and order of the Additional Sessions Judge No. 1, Jodhpur, dated 23rd of December, 1965. In Sessions Case No. 16 of 1965/31 of 1965 the Additional Sessions Judge tried the seven appellants for offences under Sections 376, 342 and 323, Indian Penal Code. After trial, he found them all guilty and convicted them and awarded sentences as detailed below :--

Gopi Shanker

u/s 376,

P.O.

5 years R. I. & fine of Rs. 500/-; in default, one year's R.I.

u/ss 342

|

6 months R.I. &fine; of Rs. 50/-; in default, two month R. I. on each count.

323

|

r/w 34

|

Mahesh Chand

u/s 376

5 years R.I. &fine; of Rs. 100/-; in default, six months R.I.

Shiv Kumar

|

Dhan Singh

|

Sher Singh

|

Tulsi Ram

| u/ss 342

|

6 months R I. &fine; of R. 50/-; in default, two months R. I. on each count.

Ram Chander

| 323

| r/w 34

|

|

All the sentences to ran concurrently.

2. Each of the seven convicts has filed a separate appeal challenging his convictions and sentences and these seven appeals are being disposed of together.

3. The facts on which the prosecution is founded may be briefly stated as follows:--

Mst Draupdi--the prosecutrix PW/1 was married with Arjun PW/2 in or about the year 1982 in Jodhpur. Mst. Draupdi's parents resided during the relevant period in a house in Mohalla Navchowki, Jodhpur, whereas, her husband resided at Mahamandir. Two months before the incident which occurred in the night between 3rd and 4th of June, 1965, and which has led to the present prosecution of the appellants, Mst. Draupdi gave birth to a child at her father's house and was residing with her parents upto the date of the occurrence. The prosecution case further is that on 3rd June, 1965, Arjun took Mst. Draupdi from her parents' house at about 5.30 P. M. and left for the market for purchasing some cloth for himself and for Mst. Draupdi.

They left the child in the care of Mst. Draupdl's mother. They arrived at Sojati Gate. While Mst. Draupdi remained outside Arjun went into Prakash Silk Store. He, however, found great rush of customers in the Prakash Silk Store, and therefore, postponed the purchase of cloth and came out of the shop. At that time Gopal PW/5 is alleged to have met Arjun and Mst. Draupdi by chance. Gopal proposed to Arjun and Mst. Draupdi that they should visit the Olympic Cinema House to see a picture and Arjun and Mst. Draupdi agreed. All the three of them thereafter went to Olympic Cinema. After the show was over they again came to Sojati Gate.

Ordinarily, Arjun and Mst. Draupdi could have availed of the direct route from Olympic Cinema to Navchowki Mohalla but at the suggestion of Gopal they adopted a route via Sojati Gate in order to provide further company to Gopal. When they arrived just outside Sojati Gate Gopal further suggested to Arjun and Mst. Draupdi to have tea at Agra Hotel. The suggestion having been accepted all the three entered the Agra Hotel at about 10.30 P. M. The prosecution case further is that in the Agra Hotel Hall there was a rush of customers and it was suggested to Gopal, Arjun and Mst. Draupdi (either by Gopi Shanker as stated in the first information report or by Mamma alias Maheshchand as put forward during the course of trial) that they should go up-stairs in the family cabin. Arjun, Gopal and Mst. Draupdi went to the family cabin and occupied some chairs near the family cabin.

It may be pointed out incidentally at this stage that initially in the first information report it was stated that they went into the family cabin and stayed there. Ignoring this discrepancy the prosecution story further is that the prosecutrix, Gopal and Arjun waited for tea for ten to fifteen minutes and then Gopal went down-stairs to enquire and on returning reported that they would be having their tea very shortly. Even thereafter tea could not be served to them for quite a long time. They, therefore, got up to go down but were asked either by Gopi Shanker or Mahesh (here again the prosecution is not quite consistent) to wait for some time. Even thereafter no tea was served but Gopi Shanker and Mahesh arrived at the family cabin with bottles of wine and soda. They also had with them four empty glasses.

Gopi Shanker and Mahesh stayed with them and offered drinks to Arjun and Gopal. After some initial hesitation they accepted the offer. According to the prosecution, each of the four persons, namely, Gopal, Arjun, Gopi Shanker and Mahesh took about one and one and a half glasses of wine. The prosecution case further is that Arjun and Gopal felt some intoxication and were then sent down. Mst. Draupdi, however, was not permitted to go down by Gopi Shanker, Gopi Shanker thereafter forcibly took off the salwar, kurta and bodice which Mst. Draupdi was putting on at the time and made her completely naked and then had forcible sexual intercourse with her without her consent.

After the first act of forcible sexual intercourse Gopi Shanker had further drinks and had forcible sexual intercourse with her for the second time. He then called Mahesh. Mahesh also had forcible sexual intercourse with Mst. Draupdi. Then followed Shiv Kumar Suri, Dhansingh and Manak, who is alleged to be absconding, and Sher Singh, Tulsi and Ramchander. The prosecution case is that each one of them had forcible sexual intercourse with Mst. Draupdi against her will and without her consent. It may be stated at this stage that Gyanendra Kumar PW/4 has his house just adjacent to the premises of the Agra Hotel. He could hear the noise that was caused in the Hotel in connection with the commission of the alleged rape by the accused-appellants.

For the first time he heard some noise in the Hotel and the cry of a woman at about 12 night. On enquiry he was informed either by Gopi Shanker that there was no woman there and that noise was caused because the servants had started taking their meals. He again heard noise after about an hour and further intervened and was told by Mahesh that the servants had been mono acting. The witness heard the noise a third time at about 3 A. M, He had also heard the sound of a woman, He again intervened and was offered the same explanation. He was, however, not satisfied with the explanation and gave a threat that he would inform the police.

Upon this, Shiv Kumar and Mamma brought Mst. Draupdi in a naked condition from the side of the cabin. She was pushed by Gopi Shanker and was taken down in the hall, Gyanendra Kumar also heard some noise in the Hotel below. He thereupon went down and got out of his house and contacted Mangla Ram of the Sojati Gate Police Outpost. They came in front of the Hotel and Satya Naraina and some other persons also arrived there. When they were there in front of the hotel Mst. Draupdi was pushed down the staircase of the Agra Hotel in a naked condition and fell on the road in that condition. Gopal and Arjun were also similarly thrown down the staircase from the Agra Hotel.

Reverting to the prosecution story, it may be stated that after Arjun and Gopal had drinks they were brought down from the second storey or the terrace whatever it may be called, to the hotel, they were taken to the kitchen and kept wrongfully confined there. Their hands had been tied with some cloth and their mouths were also gagged or closed. They remained in that condition till about 3 A. M. Then they were brought to the hotel room. Simultaneously Mst. Draupdi was also brought from the family cabin to the hall in a naked condition. Mst. Draupdi had been insisting for the supply of clothes to her but the accused did not care to supply her the clothes.

When Gopal and Arjun saw Mst. Draupdi in that condition they got annoyed and they began abusing Gopi Shanker and the other accused. The employees of the hotel did not care to supply the clothes to Mst. Draupdi but on the other hand they started beating Arjun and Copal. Gopal made an attempt to make a telephonic call to the police but Gopi Shanker asked Mahesh to cut off the wire whereupon Mahesh cut off the wire and the telephone apparatus was disconnected. In the struggle in the hotel tables and chairs were upturned and were broken. Gopal and Arjun received injuries. After this beating Mst. Draupdi, Arjun and Gopal were thrown down the staircase as stated earlier.

When the clothes of Mst. Draupdi were thrown from the window of the hotel, Mangla Ram picked them up and gave them to Mst. Draupdi. Mst. Draupdi put on the clothes. She also told Gopal, Arjun, Gyanendra Kumar. Mangla Ram and others what had happened with her in the hotel. Thereafter, the six persons, namely, Mst. Draupdi, Arjun, Gopal, constable Manglaram, Gyanendra Kumar and Satya Narain went to Police Station Udaimandir, and a verbal report was made there. Mahmud Khan PW/16 recorded the first information report which is Ex. P/1. It was got signed by all the six persons. It is stated that Mahmud Khan telephonically instructed the Officer incharge of the Police out post Sojati Gate to go to the hotel and arrest the miscreants.

He also sent a few constables from the Police Station. He also telephonically called the Circle Inspector Parth Singh PW/17 who was the Station House Officer in charge of the Police Station, Udaimandir. After the arrival of Parath Singh investigation was taken over by him and he and Mahmud Khan with some constables left for the hotel. When they were just near the hotel they saw Mangla Ram arresting Gopi Shanker. Gopi Shanker after arrest by Mangla Ram was kept in a 'Baparda' condition and was eventually produced before Mahmud Khan. An arrest memo was prepared which is Ex. P-29 and he was directed to keep himself 'Baparda' Parth Singh thereafter inspected the site, prepared the site memo Ex. P/2 and the site plan Ex. P/4.

He found tables and chairs up-turned in the hotel. He also saw pieces of glasses lying there. The wire of the telephone was lying cut off. On the roof near the family cabin he found broken pieces of glasses, signs of blood and drops of blood near the fourth cabin. He also found soda bottles, two bottles like that of beer, one small bottle in which there were some drops of wine and glasses. He also found two chairs lying near the family cabin. Two pieces of cloth like handkerchief were also noticed there and were suspected of being stained. He seized various articles including the telephone receiver and took them into his custody and prepared the recovery memo. The articles seized were sealed and they are Articles 1 to 16 and Article 20-A and 21.

Mst. Draupdi, Arjun and Gopal were thereafter taken to the Mahatma Gandhi Hospital and they were examined by Dr. Har Govind PW/9. Dr. Har Govind noticed the following injuries on the genitals of Mst. Draupdi :--

'Mucoid vaginal discharge; labia majora slightly swollen; labia minora sub-mucus; echy-mosis irregularly spread on both sides; vaginal wall tender markedly; vagina lax; and entire vaginal wall showed area of sub mucus echy-mosis.'

Dr. Har Govind also noticed the following eight injuries on her person :--

1. Contusion 31/2' x 3' area over both the thighs medially upper 4th

2. Swelling with faint contusion on sacral area 4' in diameter.

3. Abrasion 11/2' x 3/4' on the left elbow medially.

4. Abrasions irregular in 1' x 1' area over right forearm upper i'.

5. Abrasion 1' x 1/2' with swelling above left eyebrow.

6. Abrasion 1' x 1/10' below supra sternal notch.

7. Tenderness over left mid chest anteriorly.

8. Swelling over left lower jaw mid part.

Dr. Har Govind also examined Mst. Draupdi to ascertain her age and expressed the opinion that the girl was about seventeen years. From his examination of Mst. Draupdi he recorded an opinion that Mst. Draupdi had recent sexual intercourse, several times qualifying the words 'Several times' as more than one to two times.

Dr. Har Govind also examined Gopal and noticed the following injuries :--

1. Contusion 11/2' x 1/2' on left lower costal region posteriorly.

2. Contusion 3/4' x 3/4' below injury No. 1.

3. Tenderness over left upper chest anteriorly.

Dr. Har Govind examined Arjun also and found the following Injuries on his person :--

1. Abrasion 1' x 3/4' on the left wrist medially.

2. He was complaining of pain over front of chest upper part.

3. Contusion two 11/2' x 1' and 3/4' x 1/2' with abrasion over left arm lower 4th posteriorly.

After the medical examination Mst. Draupdi, Arjun and Gopal went to Mst. Draupdi's Father's house and there Mst. Draupdi changed her clothes and the clothe which she had at the time of the incident, namely, salwar and kurta, were taken into custody by the police and were duly sealed. Clothes of Gopal and Arjun were also taken into custody. During investigation other accused, namely, Mamma alias Mahesh Chand, Shiv Kumar Suri, Dhan Singh, Sher Singh and Tulsi were arrested. Manak could not be arrested and is still at large. During Investigation the underwear of Gopi Shanker having been suspected of containing stains was recovered on information given by him. Similar recoveries were also effected including one payzama of Shiv Kumar Suri.

4. After completing investigation the police submitted charge sheet against all the seven persons in the court of Additional Munsu Magistrate No. 2, Jodhpur City, who after enquiry, committed the accused to stand their trial before the court of Session. The casewas tried by the Additional Sessions Judge No. 1, Jodhpur.

5. The accused did not plead guilty and claimed trial.

6. The prosecution examined 17 witnesses to prove its case, the prosecutrix Mst. Draupdi being PW/1.

7. The accused denied having committed any offence. Gopi Shanker stated that at about 10 p. m. when he was leaving the hotel for his home he saw Arjun, Gopal, Mst. Draupdi, and Cyan Prasad entering the hotel in an intoxicated condition. He went to his house and remained there. He had sexual intercourse with his wife and at that time had the underwear which had subsequently been seized by the police. He was called to the Police Station through a constable at about 7 A. M. and was arrested. He suggested that he had been falsely implicated on account of some conspiracy hatched by the Sindhi community.

He has led defence evidence to suggest that Mst. Draupdi and Arjun were seen in suspicious circumstances outside Sojati Gate by some police constables. The police constables suspecting them to be vagrant asked them to accompany them to the Police Outpost but Arjun offered resistance. On that occasion Arjun and Mst. Draupdi wanted to go away on a cycle but were given a chase and they fell down and were Injured.

8. Mahesh Chand's version, however, is that he was at the hotel upto 11 p. m. That Mst. Draupdi, Arjun and Gopal had arrived in the hotel between 10 and 10/30 p. m. and when he left the hotel by 11 p. m. he had left behind Gopi Shanker and Mst. Draupdi, Arjun and Gopal and one servant Manak.

9. The other accused denied their presence at the hotel at the time of the alleged incident. It has, however, been suggested that after Gopal, Arjun and Mst. Draupdi and other persons were taken to the police they were beaten up and asked to falsely implicate the accused Gopi Shanker and other so that the police as well as the prosecutrlx might be able to make some money. The various accused exammed in all ten witnesses.

10. The Additional Sessions Judge framed the following four points for determination:--

1. Whether the accused persons committed rape on Mst. Draupdi?

2. Whether the accused persons wrong-fully confined Arjun, Gopal and Mst. Draupdi?

3. Whether the accused persons beat Arjun and Gopal?

4. What punishment, if any, should be awarded to the accused persons?

11. Dealing with point No. 1, the learned Additional Sessions Judge considered the various links in the prosecution case separately and arrived at the following conclusions:--

1. Reaching of these three namely, Gopal. Arjun and Mst. Draupdi, in the Agra Hotel in the night after the cinema show is fully established. This fact also finds support from tome of the statements of the accused.

2. The Additional Sessions Judge also found no difficulty in holding that Gopi Shanker and Mahesh went to the family cabin with wine, soda and glasses and that Gopi Shanker, Mahesh, Arjun and Gopal had drinks there. In arriving at this conclusion he relied upon the statement of Mst. Draupdi, Arjun and Gopal and the evidence of Parth Singh PW/17 who found soda bottles, wine bottles and glasses lying there at the time of site inspection.

3. The learned Judge after referring to the statement of Mst. Draupdi and the corroborative evidence recorded the following conclusions:--

'Having so much corroboration on these points, the statement of Mst. Draupdi about her being subjected to sexual intercourse on 9 occasions inspires confidence and there is no reason to disbelieve her on this point.' He also found corroboration from the subsequent statements made by Mst. Draupdi to Arjun, Gopal, Gyanendra Kumar and Manglaram. The statement of Dr. Har Govind was also relied upon for the conclusion that she was subjected to sexual intercourse several times.

Taking up the question whether all or any of the accused had sexual intercourse without consent the learned Additional Sesssions Judge discussed in details the case of Gopi Shanker and observed:--

'She was so dazed and almost in a sort of a trance that she could not even make a loud cry and hardly any power was left in her to put up a struggle or a resistance; and for all purposes on account of fear and the effect of wine and the suddenness of the situation she was made to submit herself to the inevitable satisfaction of lust of Gopi Shanker, who not being satisfied once had one more go at her. The circumstances, therefore, justify that she was made to submit her body under the influence of fear or terror and there was no consent.' He then collectively took up the cases of the remaining six accused appellants and stated that 'The story given by the girl about the rape committed on her by the accused persons is true and must be believed.' He further derived support for this conclusion from the medical evidence and the reports of the Chemical Analyser. The learned Judge thereafter dealt with various contentions made on behalf of the defence and negatived them. With these various finding, point No. 1 was decided in favour of the prosecution and against the accused and it was held that all accused persons committed rape on Mst. Draupdi and were guilty under Section 376, Indian Penal Code.

12. Dealing with point No. 2, the learned Judge was not prepared to hold positively that Gopal and Arjun were kept tied in the kitchen. All the same, the learned Judge held that Mst. Draupdi having been kept at the roof and Gopal and Arjun having not been permitted to go about and meet Mst. Draupdi the accused appellants were guilty under Section 342, read with Section 34, Indian Penal Code.

13. Point No. 3 was also decided In favour of the prosecution and it was held that the accused appellants Inflicted Injuries upon Gopal and Arjun.

14. The learned Judge, under point No. 4determined various punishments for the accused.

15. Aggrieved by their conviction and sentences each of the accused has filed a separate appeal. Gopi Shanker, Mahesh, Shiv Kumar and Tulsi nave filed represented appeals through Shri Bhim Raj, Shri S.T. Porwal, Shri Sardul Singh and Shri Laxman Raj respectively. The three appellants Dhan Singh, Slier Singh and Ram Chander have filed appeals through Jail.

16. I have heard the learned counsel for the defence and Mr. Har Nath Calla for the State. The cases of Dhan Singh, Slier Singh and Ramchander were also examined with the assistance of the counsel for the defence and the counsel for the State.

17. Mr. Bhim Raj challenged the findings arrived at by the Additional Sessions Judge on a number of grounds. At the outset he contended that the investigation of the case has not been quite fair. It was pointed out that Arjun, Gopal, Mst. Draupdi, Mangla Ram and Satya Narain must have reached the Police Station at about 3.45 a. m. and yet the first information report was recorded at 4.45 a. m. This interval of one hour was utilised by those interested in the prosecution for deliberations and manipulations. According to him, there was no justification for the delay in recording the information.

Proceeding further the learned counsel contended that the Police Officer who recorded the first information report got it signed by all the six persons, namely, Arjun, Gopal, Mst. Draupdi, Mangla Ram, Satya Narain and Gyanendra Kumar. According to him, this unusual step was taken by the police officer to pin down these six persons so that they may not be in a position to change their position at a later stage. The learned counsel also added that subsequently the Police Officer got the statements of all the persons including the prosecutrix, recorded under section 164, Criminal P.C. This was yet another attempt to secure commitment of the various witnesses.

In this connection relying upon Emperor v. Manu Chik, AIR 1938 Pat 290 and Parmeshar Din v. Emperor, AIR 1941 Oudh 517 he contended that an inference should be drawn that these witnesses were not considered reliable by the Police Officer and this circumstance should affect their reliability for arriving at a proper conclusion in the present case. The learned counsel also commented on the act of the Investigating Officer in associating motbirs at the time of the site inspection. Some comments were also offered on the delay in the recovery of the clothes from the person of Mst. Draupdi as well as Gopi Shanker. According to him, the clothes of Mst. Draupdi and Gopi Shanker should have been taken into custody at the earliest possible opportunity and there was no justification for the leisurely manner in which the Police Officers effected recoveries.

That the packet of the articles recovered and suspected to be stained with blood or seminal stains were not sent to the Chemical Examiner in time and were not sent after a good deal of time, and further there is no evidence to show whether they remained untampered with. Further, there is no proof that the information of the crime was forwarded to the Magistrate in time and further diaries were despatched to the superior officers regularly and punctually. Lastly, Mangla Ram having denied that tie arrested Gopi Shanker the arrest of Gopi Shanker by Mangla Ram has been wrongly shown by the Investigating Officer. On the basis of these irregularities or defects in connection with investigation the learned counsel contended that the prosecution case should be viewed with suspicion.

Arguing the case on the evidence, the learned counsel pointed out various discrepancies in the first information report and the various statements made by Mst. Draupdi. namely, statement under section 164, Criminal P. C., statement at the committal stage and the statement at the trial. A number of such discrepancies were pointed out and it was further added that the witness denied to have made some of the statements under section 184, Criminal P. C. or at the committal stage. He also invited my attention to the fact that at many places she imputed the part which was initially imputed to Gopi Shanker to Mahesh Chand.

In view of these discrepancies the learned counsel initially went to the extent of contending that Mst. Draupdi should be treated at wholly unreliable witness and that the prosecution case be thrown down on that ground. It was added that the witness being wholly unreliable no corroboration could be available from her earlier statements and other circumstances, that the materials on record are quite insufficient to establish the commission of rape by the accused on Mst. Draupdi.

Alternatively, the learned counsel contended that at any rate, the statement of Mst. Draupdi is at least partially unreliable on this ground as also on the ground that the evidence of a prosecutrix in a rape case should as a matter of prudence be corroborated by other evidence to sustain conviction. The learned counsel insisted that corroboration should be available before sustaining conviction. He submitted that there is no reliable and Independent evidence which can provide corroboration to the statement of Mst. Draupdi to establish the commission of the offence and to connect Gopi Shanker with the crime.

Continuing his argument he proceeded to state that even if Gopi Shanker's presence at the hotel and his having had sexual intercourse with Mst. Draupdi be established there is no corroboration on the point mat the sexual intercourse was without her consent. On we other hand, the learned counsel relied upon the conduct of Arjun, Gopi and Mst. Draupdi and various other circumstances including the absence of active non-resistance for a submission that the sexual intercourse, if any, cannot be proved to have been without her consent.

18. Arguing the case on behalf of Mahesh Chand alias Mamma, Mst. Porwal--the learned counsel--emphasised that Mst. Draupdi and other prosecution witnesses unjustifiably improved the case against Mamma alias Mahesh Chand by changing their version and Imputing conduct to Mahesh Chand which was initially Imputed to Gopi Shanker in the first information report. He also contended that Mahesh Chand did not take part in the wine party near the family cabin and relied upon the commission of this fact in the first information report. The learned counsel also contended that Mst. Draupdi having given a detailed account in connection with the commission of rape by Gopi Shanker omitted to give any detail in connection with Mahesh Chand and other accused and argued that Mahesh Chand should not be held to have had any sexual intercourse with Mst. Draupdi.

Alternatively, the learned counsel contended that even if Mahesh Chand had any sexual Intercourse with Mst. Draupdi it was not without her consent. Reliance was placed in this connection upon the statement of Mst. Draupdi at the committal stage that she told nothing to Mahesh Chand when he wanted to have sexual intercourse with her. The absence of marks of injuries on the person of Mahesh Chand and the absence of any blood or seminal stains on the clothes of Mahesh Chand were also relied upon by him.

19. Mr. Sardul Singh who appeared on behalf of Shiv Kumar Suri suggested that on the facts of the case the entry By Arjun, Gopal and Mst. Draupdi into the hotel could not be treated as a mere chance visit but should be treated as a pre-planned intended visit. The learned counsel emphasised that Arjun and Mst. Draupdi left their house at 5/30 p. m. for purchasing cloth. They did not purchase any cloth and then visited cinema house and after the cinema was over Mst. Draupdi and Arjun did not take direct and nearer route but arrived near the Agra Hotel and entered the hotel. This circumstance should throw a doubt on the prosecution story and consequently, the story should be rejected and no case should be held proved against the appellant Shiv Kumar Suri.

Alternatively, the learned counsel contended that Shiv Kumar Suri has his shop near the Residency Road at a distance of about two miles from the Agra Hotel and he could not have been in the hotel to have sexual intercourse with Mst. Draupdi except with some pre-planned arrangement under which he was brought to the hotel at that hour of the night. On these facts and various other circumstances, the learned counsel submitted that the sexual intercourse by Shiv Kumar Suri with Mst. Draupdi, if any, could not be without her content.

20. Mr. Laxman Raj addressed me on behalf of Tulsi and contended that he could not be identified by Mst. Draupdi and the prosecutrix having not identified him at the parade the Additional Sessions judge had no justification whatsoever to hold him liable for committing rape upon Mst. Draupdi. The learned Counsel also contended that Tulsi is not an employee of the Agra Hotel but is an employee of the Agra Sweet Home which is a different establishment. The learned counsel also invited my attention to the fact that a registercontaining the attendance of the employees ofthe Agra Hotel was taken into custody by thepolice but the same has been withheld onlybecause it did not contain the name of Tulsias the employee of the Agra Hotel.

He relied upon this fact for a contention that in these circumstances the chances of his presence in the Agra Hotel were nil. He also contended that he had been identified only by Gopal in connection with the beating given to Gopal and Arjun in the Agra Hotel Hall and that this sole testimony of Gopal should not be held sufficient to sustain his conviction on the well accepted principles relating to the value of identifying witnesses.

21. Mr. Calla appearing for the State, could not support the judgment of the trial court in so far as it relates to the conviction of Sher Singh and Tulsi for an offence under Section 376, I. P. C. These accused could not be identified by the prosecutrix at the time of the parade and there could be, therefore, no reliable evidence to sustain their conviction. He, however, contended that these two persons should be held liable as abettors in respect of the commission of the rape by the other accused.

Dealing with the arguments of the counsel for the accused, Mr. Calla submitted that the irregularities in connection with the investigation of the case are of trivial nature and there was no intention on the part of the prosecution to pin down the prosecutrix and the witnesses. On the other hand, the prosecuting agency had apprehensions that the accused being influential and rich persons could win over the witnesses and it was only to safeguard against such a contingency that the statements of the witnesses were get recorded under Section 164, Criminal P. C. With regard to the signatures of all the six persons on the first information report, the learned counsel pointed out that it was not a very material circumstance.

It was alternatively contended that the irregularities in connection with the investigation should not be permitted to affect the merits of the case after the evidence has been recorded during the course of the trial and has been appreciated by the Judge. The learned counsel also admitted that there were certain discrepancies and contradictions in the statement of Mst. Draupdi and other witnesses but it was argued that such discrepancies are quite natural and are the result either of lapse of memory or incapacity to recite the story or the stress of cross examination. The learned counsel contended that on the material facts Mst. Draupdi and other witnesses have been quite consistent and there is no reason to summarily reject the evidence either of Mst. Draupdi or other prosecution witnesses.

Then learned counsel further pointed out that the facts that Mst. Draupdi along with Arjun and Gopal went into the hotel at about 10/30 p.m., that they remained in the hotel till about 3/30 a. m. and that eventually Mst. Draupdi was thrown down the stair-case in a naked condition on the road and Arjun and Gopal were also subsequently thrown down the stair-case and that during the period they remained in the hotel Gopal, Arjun, Gopi Shanker and Mahesh Chand had drinks are abundantly proved by the evidence and circumstances of the case including in some respects the admission of the accused.

In these circumstances, the further case of the prosecution that during that interval some of the accused had sexual intercourse with Mst. Draupdi can be held easily established. There could be in his opinion no purpose for keeping Mst. Draupdi at the hotel for such a long period except to have forcible sexual intercourse with her. The evidence of the Doctor Har Govind that Mst. Draupdi had sexual intercourse several times also lends support to the above conclusion. According to the learned counsel, the statement of the girl in this context that the appellants had sexual intercourse with her, has been correctly accepted by the Additional Sessions Judge and there is no case for interference with this finding.

On the question of consent, the learned counsel pointed out that there was some resistance no doubt although there could be no active non-resistance. He, however, submitted that non-resistance in the facts and the circumstances of the case cannot tantamount to content. According to him, Mst. Draupdi faced a very critical situation. She initially was in the company of her husband Arjun, husband's friend Gopal, Mahesh and Gopi Shanker. These four persons had their drinks together.

Arjun and Gopal had some effect of the intoxicants and they were sent down from the family cabin, and she remained alone in that family cabin with Gopi Shanker who was also intoxicated and whose eyes were red and who was hefty. She could reasonably entertain an impression about the helplessness of Arjun and Gopal and felt herself under a situation where she could not think of offering any active resistance. It was according to him, a case of complete resignation. Reliance was placed in this connection upon the decision in Arjan Ram Naurata Ram v. The State, AIR 1960 Punj 303. In these circumstances, absence of active resistance cannot be treated as tantamount to consent on behalf of Mst. Draupdi.

22. Examining the argument of Mr. Bhimraj based on the alleged irregularities, it is true that the Police Officer recording the first information report should not have obtained the signatures of persons other than Mst. Draupdi. He is also right when he says that the Police Officer should have seized the clothes of Mst. Draupdi immediately at any rate, in the Hospital after her medical examination and there was no justification for the Police Officer not to arrange for the change of the clothes and the seizure of the clothes till after the arrival of Mst. Draupdi and others at her father's house. There is also an element of force in the statement of Bhimraj that the packet of articles seized and suspected to be stained with blood or seminal fluid should have been sent immediately to the Chemical Analyser and there was no adequate justification for delaying the despatch till 28th of June, 1985.

I do not quite approve of the manner in which the first Information report was got signed by many persons as also of the delay in the seizure of the clothes of Mst. Draupdi and other persons as also the delay in the despatch of the articles to the Chemical Analyser. I may also add that such irregularities along with other facts and the circumstances may affect the prosecution case. However, in the present case, I am unable to attach much importance to these Irregularities of evidence recorded during the course of trial. The act of the Police Officer in obtaining the signatures of persons other than Mst. Draupdi even though irregular, need only warrant a proper and cautions consideration of the evidence of the other witnesses at the trial and with an eye to see whether the statements at trial had been made only on account of their having been pinned down to a particular version.

As regards the delay in the recovery and seizure of the clothes or Mst. Draupdi, Arjun and Gopal in general and Mst. Draupdi in particular also does not affect the case inasmuch as I am not inclined to entertain any suspicion that the clothes might have been changed or any tampering might have been done with regard to them. Similarly, delay in the despatch of the packets of clothes is an act of inefficiency and does not reflect any manipulation by the investigating agency. The submission in connection with the sending of information to the Magistrate and of sending copies of diaries to superior officers also have no much significance in the facts and circumstances of this case.

23. Now, I take up the argument in connection with recording of the statements of all the important witnesses under Section 164, Criminal P. C. The learned counsel in the first instance relied upon AIR 1938 Pat 290. In that case Dhavle J. relying upon Queen Empress v. Jadub Das, (1900) ILR 27 Cal 295 stated as follows:--

'It was pointed out by Prinsep J. in the well known case in 27 Cal 295 that a statement of a witness obtained under this section always raises a suspicion that it has not been voluntarily made, and that the section was not intended to enable the police to obtain a statement from some person (in that case it was an incriminating statement) and as it were to put a seal on that statement by sending in that person to a Magistrate practically under custody to be examined before the judicial inquiry or trial, and therefore compromised in his evidence when judicial proceedings are regularly taken.'

AIR 1938 Pat 290 was considered by this court in Sakliat Singh v. The State, 1952 Raj LW 17. In that case it was argued that since the statements of some of the witnesses were recorded under Section 164, Criminal P. C. they should not be relied upon. The argument was repelled with these observations:--

'It may be noted that AIR 1938 Pat 290 is based on (1900) ILR 27 Cal 295 and in both the cases witnesses had retracted theirprevious statements. On this ground, it was held in those cases that the previous statements of those witnesses were not to be relied upon.'

The learned counsel, however, relied upon another portion in the judgment reading as follows :--

'Why these witnesses should all have been examined under Section 164 at a time when the investigation by the Sub Inspector Ramdeal Prasad was almost complete, if not to pin them down in the commitment and other proceedings to certain statements, does not appear.'

It is true that these observations taken in isolation may support the counsel for the defence but I must point out that the same learned Judge immediately after these observations proceeded to say that 'If the Sub Inspector had any good reason for resorting to Section 164 at this stage, it ought to have been looked into. The learned Judicial Commissioner has altogether failed to attend to this aspect of the matter.'

The observations of Dhavle J. in the circumstances should be considered limited to the facts of that particular case.

24. AIR 1941 Oudh 517 relied upon by the counsel does not lend much support as will appear from the relevant observations extracted below:--

'We are not ourselves prepared unreservedly to endorse this view. No doubt the fact that the police have considered it necessary for the statement of a witness to be recorded under Section 164 suggests that they do not consider him altogether a reliable witness: that Is to say they apprehend that he may be tampered with. But we can see no objection to the procedure being followed in appropriate cases, and we do not Know with what other object this provision was made in Section 164 .......... We can see no objection in these circumstances to the police sending the witnesses to have their statements recorded by the Magistrate under Section 164.'

In another Single Bench of this Court in Nisar v. State of Rajasthan, 1961 Raj LW 462 Beri J. referred to all these three cases as also Parmanand v. Emperor, AIR 1940 Nag 340 and summed up his conclusion as follows:--

'Section 164 of the Code of Criminal Procedure is a safe-guard intended to preserve truth in the course of an investigation and before enquiry and trial. To convert this safeguard as an argument to exclude the testimony of a witness whose version has been sought to be preserved will appear to defeat the object which the legislature intended to achieve.'

The question as to what should be the bearing and effect of the witness having been previously examined under Section 164, Criminal P. C. on the appraisement of his evidence is a question primarily relating to the appraisement of the evidence and I cannot accept the wide proposition of the learned counsel for the appellants that the witness should be necessarily treated as unreliable on that ground.

The resort to Section 164 Criminal P. C. may be made by the investigating agency some times in order to prevent a powerful and rich accused from tampering with the prosecution witnesses or may be resorted by investigating officer as a matter of mechanical habit. What inference should be drawn from the fact of the investigating officer having got the statement of the witness recorded under Section 164 Criminal P. C. is a question of fact to be determined on the facts and the circumstances of individual cases and no hard and fast rule should be laid down in such cases. All that may be necessary is that this circumstance may be kept in view in appreciating and appraising the evidence that is brought on record during the course of trial.

25. As regards the discrepancies between the statements of Manglaram and the investigating Officer and other police officers relating to the arrest of Gopi Shanker by Manglaram cannot be strictly speaking treated as irregularity. It is a simple question as to which of the two conflicting evidence is reliable.

26. Now, taking up the arguments of Mr. Bhim Raj on the evidence, I must at one state that the most important witness in the case is Mst. Draupdi P.W./1. She is the prosecutrix. She in her trial statement has implicated all the seven appellants for having committed rape upon her. She has named all the seven appellants and has identified them. Although it may be significantly pointed out at this stage that at the prior parade she could. Identify only five persons, namely, Gopi Shanker, Mahesh, Shiv Kumar, Dhansingh and Ram Chand. She further makes bold to state in Court that she had identified all the seven accused at the prior parade. Her statement on this aspect of the case is thus discrepant and does not appear to be correct prima facie.

Further, in her trial statement she made a few departures from the version given in the first information report. In the first information report she had stated that when she along with Gopal and Arjun entered the Agra Hotel then the proprietor of the hotel, who was called as 'Seth Gopi Shanker', asked them to go and wait in the family cabin. She had further stated that when after unsuccessfully waiting for tea for about an hour they proceeded to go Gopi Shanker asked them to wait and told them that tea would be served shortly. At the trial stage, she clearly stated that it was not Gopi Shanker but Mamma alias Mahesh who asked them to go to the family cabin and to wait for tea.

Further, in her trial statement she had made some statements discrepant with the statements made in the first information report, the statement recorded under Section 164, Criminal P. C. and the statement recorded at the committal stage. They are particularly with reference to the manner and the circumstances under which Gopal and Arjun left the family cabin and the manner in which Mst. Draupdi raised an alarm when Gopi Shanker began the criminal assault upon her.

The question is whether the statement a Mst. Draupdi is of a character which can by itself sustain conviction or whether it requires corroboration by independent evidence.

27. Now, the principles relating to the need of corroboration of a prosecutrix in rapecases have been laid down in two decisions of the Supreme Court, namely, Rameshwar Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54 and Sidheswar Ganguly v. State of West Bengal, AIR 1958 SC 143. In AIR 1952 SC 54, the Supreme Court made it clear that (1) the prosecutrix in a case of rape cannot be treated as an accomplice and consequently, the principle requiring corroboration in respect of an accomplice witness cannot have application in considering the evidence of a prosecutrix in a rape case; (2) that the Evidence Act nowhere provides that the evidence of a prosecutrix in a rape case requires corroboration; and that, (3) as a matter of prudence courts have insisted on the need of corroboration of the evidence of the prosecutrix.

The eventual principle laid down by the Supreme Court was finally stated as follows :--

'The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge, and In jury cases, must find place in the charge, before a conviction without corroboration can be sustained.'

It was further added,

'The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule or practice that there must, in every case, be corroboration, before a conviction can be allowed to stand.'

Dealing with the nature and extent of corroboration, their Lordships observed--

'It would be impossible, indeed it would be dangerous to formulate the kind of evidence which should, or would, be regarded as corroboration. Its nature and extent must necessarily vary with the circumstances of each case and also according to the particular circumstances of the offence charged. But to this extent the rules are clear--

First, it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant or the accomplice, should in itself be sufficient to sustain conviction;

Secondly, the independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime;

Thirdly, the corroboration must come from independent sources;

Fourthly, the corroboration need not be direct evidence that the accused committed the crime.'

Emphasising the expression in the second rule quoted above that 'the independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with It by confirming in some material particular the testimony of the accomplice or complainant', the counsel for the accused contended that in order to connect the accused with the crime mere corroborative evidence showing that the prosecution story is more probable and safe to act upon is not sufficient. There must be independent evidence to connect the accused with the crime.

I regret, I cannot accept this contention. The Supreme Court made it clear that there cannot be any hard and fast rule as to the nature and extent of the evidence required to corroborate the case. Their Lordships also made it clear that the corroboration should be such as to render the prosecution story reliable and safe to act upon and that this general statement was made both in connection with the proof of the commission of the crime as also in connection with establishing the identity of the offender. The expression in rule two appears to have been used only to contrast the two main subjects on which corroboration is needed. The contention of the counsel in this behalf therefore merits no consideration.

28. Now, the question as to what should be the test to determine whether the evidence of a prosecutrix requires to be corroborated or not, came up before the Nagpur High Court in State Government, Madhya Pradesh v. Sheodayal Gurudayal, AIR 1956 Nag 8 where the law was laid down as follows:--

'The test as to where corroboration is necessary lies in the naturalness of the story deposed to by the prosecutrix. If there be any doubt as regards its genuineness, there is the need of caution and therefore, of corroboration. For this purpose it is not necessary that the entire story should appear doubtful. It is sufficient if any part of the narration has the semblence of exaggeration or artificiality.'

I have no objection in adopting the broad test laid down in the Nagpur case out without treating it as any rigid rule of law. In my opinion, the question whether the statement of the prosecutrix requires corroboration and in what particulars and what kind of corroboration should be considered sufficient, are in the ultimate analysis questions relating to the correct and proper appreciation of evidence and must be answered with reference to the facts and the circumstances of individual cases and the principles laid down in the cases should be looked at merely guiding principles and not inflexible rule of law.

Proceeding to consider the statement of Mst. Draupdl in the light of the principles indicated above, I may at once observe that the trial court has not considered the statement of Mst. Draupdi as sufficient to sustain conviction. It may be pointed out that Mst. Draupdi made various discrepant statements and improved and exaggerated the case by naming and identifying Tulsi and Sher Singh even though she could not identify them at a prior parade. She even made hold and said that she had identified them at a prior parade. The conduct of Arjun, Gopal and Mst. Draupdi as will be detailed at a later stage prima facie does not appear to be usual and normal. The statement of Mst. Draupdi needs corroboration to sustain conviction. At an earlier stage Mr. Bhim Raj had made a submission that the statement of Mst. Draupdi should be treated as wholly unreliable and emphasised various discrepancies and contradictions.

But, when I proceeded to examine and discuss in detail these contradictions and discrepancies with a view to properly appraise and appreciate them, the learned counsel did not press the point and emphasised only that the statement of Mst. Draupdi should be considered as partly unrealiable. In the circumstances, I have to see whether there is corroboration of the statement of Mst. Draupdi both with regard to the commission of the crime and the complicity of each of the accused-appellants. In examining this matter I consider it proper and convenient to deal with the matter by breaking the prosecution story in some parts as detailed below :--

1. That the girl entered the Agra Hotel at 10-30 p.m. and remained there or was kept in the hotel or partly remained or partly kept fn the hotel upto 3-30 a.m.

2. Whether during this interval in her presence Gopi Shanker, Mahesh Chand, Arjun and Gopal enjoyed drinks.

3. Whether after the drinks were over Mst. Draupdi was subjected to sexual intercourse by all or some of the accused;

4. Whether the sexual intercourse was committed with or without the consent of Mst. Draupdi:

29. As regards the first part, there is overwhelming evidence to show that the girl was in the hotel from 10-30 P. M. to 8-80 A. M. (Whether she remained there voluntarily or was kept by force or otherwise, is not very material for determining the liability of the various accused for the offence of rape. In the first instance, there is the evidence of Mst. Draupdi herself. Corroboration is also available from the evidence of Arjun and Gopal, Then there is the evidence of Gyanendra Kumar PW/4 who intervened three times and on the last occasion he saw the girl (Mst. Draupdi) in a naked condition being taken by Mahesh and Shiv Kumar and Gopi Shanker giving a push.

Above all, there is the evidence of Mangla Ram and Gyanendra Kumar that they saw the girl being thrown down the stair-case of the Agra Hotel. Even the defence witness Ram Nath DW/1 sees Mst. Draupdi and Arjun near the Agra Hotel at the relevant time. A version was put forward on behalf of the defence that Mst. Draupdi and Arjun were seen in circumstances showing their vagrancy near the Agra Hotel and they were asked by the Police constable to accompany them to the Police Station and that they tried to run away on cycle but tell down and got injured. The trial Judge has discarded the evidence of Ramnath who was produced to support this version and gave a number of reasons for doing so. In my opinion the defence version is not fit to be accepted and the prosecution case that Mst. Draupdi remainedin the hotel from 10-80 p.m. to 8-80 a.m. stands nearly proved. In fact, the defense alsodid not join any serious controversy on this aspect of the case.

30. The second part of the story is also abundantly proved by the evidence of Mst. Draupdi, Arjun and Gopal and by the evidence of Parth Singh who found few articles near the family cabin lending support to the prosecution case. This part of the prosecution case also stands proved and the counsel for the defence could not urge any substantial argument to displace this finding,

31. That during this interval Mst. Draupdi was subjected to sexual intercourse also stands clearly proved. Besides the statement of Mst. Draupdi, there is the evidence of Dr. Har Govind PW/9 who has deposed that his examination of Mst. Draupdi revealed that she had recent fresh sexual intercourse several times. Then the circumstance that this young girl remained in the hotel for quite a long period and that there were drinks also lends assurance to her story that she was subjected to sexual intercourse.

32. The question next emerging the consideration is: whether all or some of the accused had sexual intercourse with her. I proceed to examine cases of each of the accused in detail.

I first take up the case of Gopi Shanker.

Gopi Shankar had taken the plea that he had left the Agra Hotel at about 10 p.m. and that when he was getting out of the hotel he saw Mst. Draupdi, Arjun, Gopal and Gyanendra Kumar entering the Agra Hotel. Some of them appeared to be drunk, He thus expressed ignorance of what happened in the hotel subsequently. He attributes his prosecution to the enmity with Gyanendra Kumar and a conspiracy by the Sindhi Community. Now, the first fact which requires determination is, whether Gopi Shanker remained in the hotel between 10 p.m. and 3-30 a.m. or had been at his house during the relevant time. As to his presence there is the evidence of Mst. Draupdi, Arjun, Gopal and Gyanendra Kumar.

It was also pointed out to me that the accused Mahesh had stated that when he left the hotel at 11 p.m. he had left Gopi Shanker along with Mst. Draupdi, Arjun and Gopal in the hotel but that statement of the co-accused cannot be considered evidence against Gopi Shanker. Ignoring the statement of Mahesh Chand, I have no hesitation in agreeing with the trial Judge that the evidence of the witnesses coupled with the evidence of recovery of certain articles from near the cabin clearly prove the presence of Gopi Shanker in the hotel between 10-30 p.m. and 3-30 a.m. I also have no hesitation in coming to the conclusion that during this interval Gopi Shanker had sexual intercourse with Mst. Draupdi and there are various circumstances to support this conclusion,

In the first instance, the evidence clearly shows that Gopal, Mst. Draupdi and Arjun waited for tea for about an hour and then Gopi Shanker and Mahesh Chand came with wine and soda bottles and excepting Mst. Draupdi the remaining four shared the drinks. Thedrinks were supplied free by Gopi Shanker, There is also evidence that after the drinks were over Copal and Arjun went down or were sent down and Mst. Draupdi remained alone with Gopi Shanker. Considering all this evidence, I find that there was ample opportunity for Gopi Shanker to commit sexual intercourse with Mst. Draupdi and these circumstances lend corroboration to the statement of the girl that Gopi Shanker had sexual intercourse with her.

Then there is the further fact that Gyanendra Kumar intervened and protested at the presence of a woman in the hotel and in Gopi Shanker's presence Mahesh Chand gave a false explanation denying the presence if any woman in the hotel. The conduct during the subsequent struggle and fight between the employees of the hotel and Gopal and Arjun and his direction to Mahesh Chand to cut off the telephone wire also is a factor against the accused Gopi Shanker and, finally, the denial by him of his presence in the hotel completes the link in the chain of circumstances. I am amply satisfied that Gopi Shanker had sexual intercourse with Mst. Draupdi during the period she remained in the Agra Hotel and the trial Judge's conclusion in this behalf is quite sustainable.

Similarly, there can be no doubt that Mahesh Chand also had sexual intercourse with Mst. Draupdi. He wan also present at the wine party His presence at that hour of the night, his false explanation to Gyanendra Kumar coupled with me evidence of Arjun Gopal and Gyanendra Kumar lend sufficient corroboration to the evidence of Mst. Draupdi that Mahesh Chand had sexual intercourse with her.

The conclusion of the trial fudge with regard to Shiv Kumar also appears to be fully justified. Shiv Kumar had no justification to remain in the hotel at an odd hour and his presence and the various circumstances deposed to by the witnesses about his giving a push to the girl down the stair case confirm the statement of the girl that she was subjected to sexual intercourse by Shiv Kumar.

Similarly, there is no doubt that Dhan Singh also had sexual intercourse with Mst. Draupdi. His presence and the various circumstances lend assurance to the evidence of Mst. Draupdi. Besides, Mst. Draupdi in her statement made soon after the incident to Arjun, Gopal, Gyanendra Kumar and Manglaram implicated all these four persons and one Manak and that statement can also be availed of as corroborating the evidence of Mst Draupdi and establishing consistency on her part. A controversy was joined whether this statement can also be admissible under Section 8 of the Indian Evidence Act being the evidence of the conduct of Mst. Draupdi but I consider it unnecessary to go into that aspect of the case.

The case of Ram Chand, however, presents certain difficulties. Ramchand was not specifically named in the first information report The girl named five persons, namely, Gopi Shanker, Mahesh Chand, Shiv Kumar, Dhansingh and Manak and further added that some two or three other employees of the hotel had also committed rape upon her. It has been stated by Mst. Draupdi during her trial statement that she could ascertain the names of all the accused when each one of them was calling the other by name. If this part of the statement of Mst. Draupdi is true mere is no adequate justification for the non-mention of the name of Ramchand in the first information report. Obviously, the statement of Mst. Draupdi implicating him cannot by itself be sufficient to sustain conviction and we have to seek corroboration from other sources.

Gopal and Arjun have of course shown his presence in the hotel at some stage of the case but he being a mere employee his presence in the hotel cannot be considered sufficient to sustain the prosecution case that he had also sexual intercourse with Mst. Draupdi. The prosecution story that Ramchand had also sexual intercourse with Mst. Draupdi does not appear to have been proved beyond reasonable doubt.

An argument was advanced on behalf of the State that even so Ram Chand should be held liable as an abetter for the offence of rape. I will examine, this aspect of the case at a later stage.

Now, taking up the cases of Sher Singh and Tulsi, if is significant that Mst. Draupdi could not identify any one of them at the prior parade. She of course named both of them and identified them at the trial but considering her failure to identify both of them at a prior parade, her evidence at the trial naming and identifying Sher Singh and Tulsi can be of no avail whatsoever. The only other evidence against these persons is that on some occasion they took part in the fight that took place between the employees of the hotel and Arjun and Gopal in the hall. That evidence also is wholly insufficient to persuade anybody to hold that they must have had sexual intercourse with Mst. Draupdi.

In my opinion, there is absolutely no evidence worth the name to establish that Sher Singh and Tulsi had sexual intercourse with Mst. Draupdi. I am surprised that the Additional Sessions Judge still held proved that these two persons also had sexual intercourse with Mst. Draupdi.

It may be mentioned here that the learned Additional Sessions Judge discussed in detail the case of Gopi Shanker and discussed the cases of all the remaining accused generally. In this connection, he further observed, 'No doubt she Identified only 5 but having seen them for the first time on that night, identification of 5 out of 7 is good corroboration of her version to rely upon her that all the 7 committed rape on her.'

I am wholly unable to appreciate the above observations made by the Additional Sessions Judge. In this respect the appreciation of the evidence by the Additional Sessions Judge while dealing with the cases of Sher Singh and Tulsi is anything but satisfactory. I am quite aware that absolute certainty in the present work-a-world in the matter of establishing the guilt of the alleged offender is not possible but at the same time there must be a high degree of probability to induce a prudent man to act upon the probabilities. It it true that every effort should be made to see that escape of guilty person is as rare as possible but at the same time no risk should be taken by the courts to convict an innocent person and to cause the ruin of the innocent victim and the members of his family.

The approach of the courts in such matters should not be over-credulous but should be critical and prudent. I must differ from the finding of the Additional Sessions Judge and hold that there is no proof on record to show that Sher Singh and Tulsi had sexual intercourse with Mst. Draupdi.

33. The next and the crucial controversy is whether the sexual intercourse by these four persons was committed with or without the consent of Mst. Draupdi. At this stage, it will be proper to point out that some statements have been made in decided cases and in text on Jurisprudence to the effect that 'An unwilling girl is bound to resist an attempt of rape and is expected to suffer injuries on that account.' There are also statements to the effect that 'it is hardly possible for one man to commit rape upon a healthy unwilling woman except under certain special circumstances.' These statements are sometimes relied upon to ignore the distinction between what may be desired as passive non-resistance and consent.

It will be therefore, proper to have a correct conception of what should be treated as a consent on the part of the prosecutrix. Such a point came for consideration in Rao Harnarain Singh Sheoji Singh v. The State, AIR 1958 Punj 123. Tek Chand J. brought home the distinction between 'passive submission' and 'consent' in the following words :--

'A mere act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be 'consent' as understood in law. Consent on the part of a woman, as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent. Submission of her body under the influence of fear or terror is no consent.

There is a difference between consent and, submission. Every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent. Consent of the girl in order to relieve an act of a criminal character like rape must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure.'

These observations were quoted with approval In re, Anthony, AIR 1980 Mad 308 and AIR 1960 Punj 303. I respectfully agree, with the statements made by Tek Chand J., din the conception of 'consent'.

34. In considering the question of 'consent', it will be also useful to refer to some observations made in Dr. Gour's Penal law, Seventh Edition, Page 1845 :--

'The question of consent is by far the most important in the case. Of course, such consent may be express or implied. If it is an express consent, a case will seldom be taken to Court. If it is taken to Court, it will have to consider if such consent was likely to have been given by the prosecutrix. Excepting, of course, the case of prostitutes and other mercenaries, women are seldom prone to translate their thoughts in these matters into words. They usually leave the matter of consent to tacit understanding. In such cases consent becomes a matter of inference to be made from evidence of previous or contemporaneous acts and conduct and other surrounding circumstances.'

It may be further observed that non-resistance, if not otherwise accounted for, should be real and not unreal, for there is such a thing as maiden modesty, and some resistance is simulated even by women who arc most anxious For the connection. In determining the question of consent these guiding principles deserve to be kept in view.

35. Proceeding to examine the question of consent or no consent in the present case, it will be pertinent to observe that none of the accused nave pleaded having had sexual intercourse with Mst. Draupdi with her consent. All of them have come forward with a complete denial. In the circumstances, a version explaining the manner and the circumstances under which the consent was given and further explaining as to how even (when the entire series of sexual intercourse with the girl was with her consent) Mst. Draupdi received injuries and why there was a fight between Gopal and Arjun on the one hand and the hotel staff on the other hand leading to the throwing down of the girl in naked condition, could not and has not been put directly before the Court. The accused merely relied upon some circumstances appearing from the prosecution evidence and the inferences to be drawn from them and upon the abstract doctrine of the burden of proof being on the prosecution. The various suggestions in this behalf have been indicated earlier, With these introductory observations, I proceed to examine the cases of each of the accused.

36. Taking up the case of Gopi Shanker. I may observe:

(a) The conduct of Mst. Draupdi, Arjun and Gopal, namely, (i) first of all leaving the baby of two months old at 5 P. M. to purchase cloth (the purchase was not effected on that day or even subsequently at any stage), (ii) visiting Olympic Cinema House on a sudden meeting with Gopal and at his suggestion; (iii) returning again to Sojati Gate and not availing of the nearest route via Jalorigate for Navchokia; (iv) visiting Agra Hotel for tea and waiting for an hour for tea which was never served and (v) Arjun and Gopal's accepting offer or free drinks by Gopi Shanker and enjoing them with Gopi Shanker and Mahesh all along keeping Mst. Draupdi with them is unusual and not normal, and can reasonably be Interpreted as amounting to inviting and asking for the seduction of Mst. Draupdi.

(b) Secondly, Mst. Draupdt made various contradictory statements on certain matters, The first important matter relates to the manner and the circumstances under which Arjun and Gopal left the family cabin leaving Mst. Draupdi alone in the company of Gopi Shanker. In the first information report which has been signed by Mst. Draupdi, Gopal and Arjun, it was stated after some drinks when Arjun and Gopal began to feel intoxicated Gopi Shanker sent them down but he did not permit her to go down and detained her there. The manner in which she was detained was not given in the first information report.

In the statement recorded under Section 164, Criminal P. C. Ex. D/1 she stated that after her husband and Gopal began to feel intoxicated Gopi Shanker took her husband Arjun and Gopal down and himself returned to the family cabin and offered her drinks. In her statement at the committal stage she made a statement that after Gopal and Arjun began feeling intoxicated. Gopi Shanker sent them down with Mahesh Chand and when she began to go down Gopi Shanker caught hold of her. She attempted to cry but Gopi Shanker gagged her mouth. In her statement at the trial she comes forward with a version to the following effect:

'that after Gopal. Arjun, Mahesh Chand and Gopi Shanker had drinks, Gopi Shanker sent Arjun and Gopal with Mahesh and when she began to accompany them Gopi Shanker caught hold of her and gagged her mouth.'

In giving details she stated that they had left the family cabin and had come up to the stair case. Gopal and Arjun had stepped down 2 or 3 steps and she was just getting down. She was pulled up by Gopi Shanker. She was faced with various contradictory statements and she could not properly reconcile them. Arjun PW/2 and Gopal PW/5, however, give discrepant version. According to them, when they had taken sufficient drinks and felt intoxicated, they wanted to go home. Gopi Shanker thereupon said to Mahesh that they should see them off. Gopal was ahead of all. According to Gopal when he had descended two-three steps, Mahesh called Dhansing, Suri etc. and they gagged the mouth of Gopal. Arjun says that he was ahead of his wife and when he had descended one or two steps, Mamma alias Mahesh gagged his mouth and pushed his wife back to the roof.

On a careful consideration of these varying statements there can be no escape from the conclusion that the prosecution version as to the manner in which Arjun and Gopal left the family cabin leaving Mst. Draupdi alone in the company of Gopi Shanker is not consistent and varying stands have been taken in this behalf. There is no satisfactory explanation for these variations. The version given by Mst. Draupdi at the trial that while Arfun and Gopal and Mst. Draupdi were getting down across the stair-case Mst. Draupdi was over powered and taken away by Gopi Shanker cannot be accepted as probable and convincing.

Similarly, the various statements of Mst, Draupdi bearing on the question of resistance and raising an alarm are discrepant and inconsistent with each other. In first information report she merely stated that she attempted to raise an alarm but Gopi Shanker gagged her mouth and threatened to kill her, and further told her that if she raised a cry she would be killed and if she did not raise a cry she would be given ample money. In her statement under Section 164, Criminal P. C. she stated that when she attempted to cry Gopi Shanker gagged her mouth and gave her a threat that she would be killed in case she raised an alarm. In the committing Court during cross examination she stated that she could not cry aloud, she was inclined to raise an alarm but she could not. These discrepancies have not been satisfactorily explained and the witness adopted a course of disowning earlier statements.

Ordinarily, these discrepancies may not be of great importance but considering the unusual little artificial nature of the prosecution case these discrepancies cannot but have bearing on the crucial question of consent or no consent of the girl (c). There is no evidence worth the name of any active resistance offered by Mst. Draupdi to Gopi Shanker (d). Mst. Draupdi further states that Gopi Shanker after having one sexual intercourse drank wine and committed sexual intercourse with her the second time. It also appears a little improbable that a person of Gopi Shanker's age having once committed sexual intercourse would dare to commit sexual intercourse for the second time with an unwilling girl. The fact that Gopi Shanker had sexual intercourse a second time even though theoretically not entirely inconsistent with the prosecution case of no consent is a fact which when considered with other circumstances goes in favour of the accused.

It may be mentioned that Mst. Draupdi made some variations In her story with regard to the part played by Gopi Shanker. In the first information report she imputed various acts to Gopi Shanker, namely, that Gopi Shanker asked them to go to the cabin, that Gopi Shanker asked them to wait for tea etc. She gave up that part of the case and imputed all these acts to Mahesh Chand. According to the learned counsel this also indicates a divided mind of Mst. Draupdi.

I am not Impressed by the suggestion of the counsel for the State that Mst. Draupdi faced a situation where she became 10 helpless as to see no other alternative but to submit to the compulsion on the part of Gopi Shanker. On a cumulative consideration of all the circumstances I find It very difficult to arrive at a positive conclusion that Gopi Shanker forced himself upon an unwilling girl. It is not quite easy or safe to completely overrule the possibility of some kind of initial tacit consent on the part of Mst. Draupdi so far as Gopi Shanker is concerned and the subsequent prosecution of Gopi Shanker for the principal offence on account of the excesses committed upon her by some of the other accused to which excesses Gopi Shanker was a party as will be shown hereafter. Gopi Shanker deserves benefit of doubt on this aspect of the case and an offence under Section 376, Indian Penal Code has not been proved satisfactorily beyond doubt.

A question has been raised that Gopi Shanker should be held liable as an abettor of the commission of rape by other persons. I will revert to this aspect of the case at a large stage.

37. The position with regard to the subsequent acts of sexual intercourse by Mahesh Chand, Shiv Kumar Suri and Dhan Singh must stand on a different footing. Considering that the girl had delivered only two months back and the further fact that she had been subjected to sexual intercourse twice by Gopi Shanker it cannot be reasonably expected that she would give to further acts of sexual intercourse her consent in the sense indicated above. It may also be pointed out that the atmosphere in the hotel can easily be termed as hostile for Mst. Draupdi and after she had been subjected to sexual intercourse twice by Gopi Shanker she must have been placed in a strange or peculiar circumstances hardly in a position to offer any active resistance to the other accused appellants.

Then, there is also evidence of resistance offered by her. In the first instance, there is her own statement that she was weeping and asking each of the accused to leave her and was uttering resistance when Mahesh Chand, Shiv Kumar and Dhansingh had sexual intercourse with her turn by turn. This statement is corroborated by the statement of Gyanendra Kumar who is the occupant of the adjacent building. He hears the sound and shrieks of a woman and Intervenes a few times. The details to this connection have already been given. The credibility of Gyanedra Kumar's statement has been challenged on the ground of his enmity with the accused and further on the ground that in his statement (i) that on the occasion of first Intervention he saw Mahesh Chandra rebuking Gopal and Gopi Shanker siding with Gopal, he is not supported by Gopal and Arjun (ii) further in his statement that on his last intervention he saw the girl having been brought from the family cabin by Mahesh Chand, and Shiv Kumar in a naked condition and Gopi Shanker having pushed her, he is not supported by Mst. Draupdi. I do not attach much importance to this argument.

There is no satisfactory proof of Gyanedra Kumar's enmity with each of the accused and I am not prepared to believe that Gyanendra Kumar could have any motive to falsely implicate the accused. Besides, his statement derives support and assurance from the fact that he goes out of his house at an odd hour, contacts Manglaram and brings him to the hotel and then along with Manglaram sees the girl Mst. Draupdi, Arjun and Gopal being thrown down the staircase of Agra Hotel and then goes to the Police Station along with them. The fact that Gopal or Arjun or Mst. Draupdi do not depose as to the details given by Gyanendra Kumar appears to be more in the nature of omissions ana cannot taken to contradict his evidence.

Lastly, the subsequent events, namely, a fight between Gopi Shanker and his employees on the one hand and Gopal and Arjun on the other hand, cutting off the telephone wires and throwing Mst. Draupdi in a naked condition, all clearly shows that the entire series of sexual intercourse with Mst. Draupdi could not have been with her consent.

It was suggested on behalf of the defence that this dispute might have been over the payment of money to Mst. Draupdi or her husband and Gopal. I have no hesitation in rejecting such a suggestion as in the first instance it was not pleaded by any of the accused nor there are materials on record to sustain such a suggestion.

38. Even so, arguing the case of Mahesh Chand, the counsel relied upon the absence of injuries on the person of Mahesh Chand and the absence of blood and seminal stains on his clothes. They are, however, not decisive and once the commission of sexual intercourse is held proved they threw no light on the question of consent, The counsel also relied upon the alleged contradiction in the statement of the girl at the trial stage and at the committal stage. She had stated at one stage, in the statement at the committal stage that she said nothing to Mahesh Chand. The position in this connection appears to be this.

In this Court she stated that she asked Mahesh Chand to give her up and she was weeping and she was resisting. At the committal stage at one stage she had stated that she said nothing to Mahesh Chand. At another stage she had stated that she had asked each one of the accused while committing sexual intercourse to give her up and she further stated that she could not remember whether on the prior days she had stated that she told nothing to Mahesh Chand. Considering the entire statement at the committal stage, I do not attach much importance to the discrepancies in the two statements. Besides, ignoring the controversy whether she said anything to Mahesh Chand the fact that she was weeping and resisted Mahesh Chand go to establish want of consent on her part.

39. The cases of Shiv Kumar Suri and Dhan Sing who committed sexual intercourse with Mst. Draupdi, stand on still a worse footing. Mr. Sardul Singh's arguments detailed above are merely conjectural and cannot be accepted in the face of positive evidence furnished by witnesses and the circumstances.

Even at the cost of repetition I must state that it is impossible to hold that she would submit her person to various persons in spite of the fact that she was not so healthy and had delivered only two months back. Even assuming the girl might have been brought to the hotel under some prior arrangement, it must be held reasonably that the other accused took advantage of me situation and over stepped and subjected the girl to sexual intercourse without her consent on the occasions. On a consideration or the evidence and all the circumstances of the case, I think it reasonable to record my agreement with the Additional Sessions Judge that Mahesh Chand, Shiv Kumar and Dhan Singh had sexual intercourse with Mst. Draupdi without her consent and they have been rightly convicted under Section 376, Indian Penal Code.

40. Now, I take up the question of the liability of Gopi Shanker, Ram Chand, Shiv Kumar and Tulsi as abettor in the offence. So far as Gopi Shanker is concerned, it would be relevant to state a few facts.

Gopi Shanker is the proprietor of the hotel and the entire hotel building is at his disposal. After Mst. Draupdi entered the hotel and went along with her husband and Gopal to family cabin and waited for tea, Gopi Shanker and Mahesh Chand appeared on the scene with wine and soda bottles. They enjoyed drinks for some time and then Arjun and Gopal were sent down and Gopi Shanker had sexual intercourse with Mst. Draupdi. After doing so, he called Mamma alias Mahesh Chand. Then Mamma had sexual intercourse with Mst. Draupdi. At that time Gopi Shanker remained standing near the scene. Then followed Shiv Kumar, Dhansingh who also had sexual intercourse with Mst. Draupdi.

Manak is alleged to have also committed sexual intercourse but he is not before me and it will not be proper to say anything in connection with his case. When Mst. Draupdi was brought from the cabin on the insistence of Gyanendra Kumar she was brought in naked condition by Mahesh and Shiv Kumar and Gopi Shanker gave a push to her. Gopi Shanker thereafter took an active part in the fight between the hotel employees and Gopal and Arjun and got the telephone wire cut off when Gopal wanted to inform the police, The facts that Gopi Shanker remained in the hotel, that he called Mahesh Chand and that he appeared on the scene when the girl was brought and finally, he got the telephone wires cut off, all unmistakably lead to the conclusion that Gopi Shanker instigated as also intended and actually facilitated the commission of crimes by other persons. Gopi Shanker's liability as an abettor For the offences committed by Mahesh, Shiv Kumar and Dhansingh thus stands clearly proved.

41. I do not find sufficient materials on record to arrive at a conclusion that Ram Chand, Sher Singh and Tulsi did in any way abet the commission of crimes by the other persons. They are merely employees of the hotel and acted simply under order of their employer.

42. Now, I take up the offences under Sections 342 and 323, Indian Penal Code.

The offence under Section 342, Indian Penal Code, is alleged to have been committed both in respect of Mst. Draupdi and Arjun and Gopal. So far as the wrongful confinement of Gopal and Arjun is concerned, I do not find sufficient materials to justify the conviction. The first information report merely mentions that they were sent down. There is no mention that they were either beaten up or kept in wrongful confinement. The evidence at the trial as to the manner in which they were taken to the kitchen and wrongfully confined is also not convincing. It may be mentioned in this connection that although the noise created on the family cabin could attract the attention of Gyanendra Kumar, Gopal and Arjun could hear nothing. It appears that either they were intoxicated and stayed in the hotel in that condition or they were indifferent to what was going on with the girl in the cabin in the initial stages. The charge of wrongful confinement in connection with Gopal and Arjun fails and conviction on that account cannot be sustained.

It is true that Mst. Draupdi was subjected to sexual intercourse and was detained in that connection but the essential offence against her is the commission of the offence of rape and I do not see the propriety of convicting the accused for the offence under Section 342, Indian Penal Code, in respect of her detention for rape. Convictions of all the accused under Section 342, Indian Penal Code, do not deserve to be maintained.

43. The charge under Section 323, Indian Penal Code relates to the beating given to Gopal and Arjun firstly, at 12-30 p.m. when they were brought down from the family cabin and secondly, to the beating given to them at 3-30 a.m. in the hotel after the girl was brought in a naked condition. In view of the commission of the fact of beating in the first information report on the first occasion, I do not place much reliance upon that part of the story. As regards the beating given after the girl was brought naked in the hall, all the witnesses mention the presence of all the accused. All these witnesses have identified Sher Singh and Ram Chand but Tulsi has been identified only by Gopal. He has not been identified by Arjun and Mst. Draupdi.

The participation of Sher Singh and Ram Chand in the beating in the hall thus stands proved. I do not, however, consider it safe to hold the participation of Tulsi proved inasmuch as there is the sole testimony of Gopal identifying him it is an established rule of prudence that the evidence of one identifying witness should not be considered sufficient to sustain conviction even though it may be of satisfactory nature. Conviction of Gopi Shanker, Mahesh Chand, Shiv Kumar Suri and Dhan Singh under Section 323, Indian Penal Code, is also sustainable on the evidence on record.

44. From the foregoing discussions the net result is that conviction of Gopi Shanker Is altered from Section 376 to Section 376 read with Section 109. Conviction of Gopi Shanker under Section 323, is also maintained. Convictions of Mahesh Chand, Shiv Kumar Suri and Dhan Singh under Sections 376 and 323 are maintained. Their convictions under Section 342 are set aside. Convictions of Ram Chand and Sher Singh under Sections 376 and 342 are set aside. Convictions under Section 323 are maintained. Conviction of Tulsi on all the counts are set aside.

45. I now take up the question of sentence and I propose to deal with it in a little detailed manner for two reasons:--

(a) I have found in the judgments coming before me great and extreme variations in the sentences awarded by the lower courts.

(b) Some of the Presiding Officers of the lower courts had on occasions discussed with me on the question of sentence.

It may be stated at the out-set that the question of award of sentence is a matter of discretion of the Judges, and the discretion has to be exercised on a consideration of the circumstances aggravating or mitigating of individual cases as also circumstances relating to the character and antecedents of the individual accused and it is impossible to expect mathematical uniformity in the sentences. I may also add that in spite of directions or instructions and even professions to the contrary the personal philosophy of the Judges and their experience and knowledge of human affairs cannot but enter in the determination of the sentence. AH the same, there are certain basic considerations which must be kept in view in determining the sentence to be awarded in particular cases.

It may be stated that initially retribution was considered the main object of punishment and tooth for tooth and eye for eye was the ordinary rule then prevailing at the time. With the development of biological and social sciences and growth of knowledge of behavioural patterns, reformation and rehabilitation and prevention of offences came to be recognised as the objects of punishment. Indeed correctional philosophy has been cautiously progressing towards emphasis on rehabilitation and reform as well as social protection rather than retribution and punishment. Emphasis is also sometimes laid on the need of deterrent punishment to deter persons from committing crimes.

None of these theories emphasising retribution, deterrence, reformation or prevention could escape criticism. The retributory theory was referred by Lord Justice Asquith as the one so discredited that to attack it is to flog a dead horse. Commenting over the propriety of righteous indignation associated with the retributory theory in awarding punishment Alien went to the extent of observing as follows:--

'What is righteous indignation? For myself, I view It with great caution. There is no judge whom I distrust more than the one who gives vent to his moral indignation in passing sentence. Are we not here dressing a wolf in sheep's clothing? Vengeance lies in our most primitive instincts, which all morality tells us to school and control. Becon called it a 'kind of wild justice,' and because it is wild, it is not justice.'

Crime should not be emphasised as an issue between criminals and the society or individuals wronged but as a social problem demanding an earnest and continuous attention and just solution in the context of the prevailing conditions. Considering the efficacy of the deterrent sentences, Alien noticed the shift from the past opinion to avenge the crime more and more severely and a growing relisation that mere repression cannot be the sole effective answer to crime. According to him the belief of the ardent philanthropists of the past that the hope of reformation lies in grinding a brute labour on the one hand and compulsory religious instructions on the other hand is not shared by reasonable and experienced persons and there is developing a different penology based on attacking crime at its source than scourging it for its results.

Reformatory theory has its limitations and its success is not precisely open to assessment. It must depend upon the general attitude of the public to the crime to the offender and to the discharged offender and upon the attitude of those responsible for the punishment. As a matter of fact no individual theory can be treated valid for all times and all people and the correct and balanced view appears:--

'Whilst the decision as to whether a person is punishable must be based on considerations bearing solely upon his past actions, the decision about whether actually to punish him, and in what way to do it, must be decided with a view to the present state and future good of both society and himself; the decision as to what is good in such a situation can be grounded only upon a thorough examination of the possibilities of deterrence and reformation, within the limit set by considerations of the degree of guilt of the offender.'

Punishment to be proper, fair, effective and purposeful, must fit not only the crime but also the criminal.

As one criminologist puts it--'Punishment is an art which involves the balancing of retribution, deterrence, prevention and reformation in terms not only of the courts but also of the prevailing values and In balancing the purposes of punishment first one and then another receives emphasis as accompanying conditions change.'

I also record my agreement with some of the Jurists who have formulated the following principles:--

1. An excessive punishment, instead of being a deterrent, often results in the generation of an angry public contempt of justice because of its severity, and does not reform the criminal who perceives injustice towards himself.

2. Severity of sentence is far less effective as a deterrent to crime than certainty of detection and sentence.

3. Severity of punishment alone will never permanently solve the crime problem, but imposition of a series of severe sentences frequently temporarily at least, tends to suppress a local crime wave.'

These recent trends have been recognised and approved by the Supreme Court of' India in Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh, AIR 1964 SC 1140 for ordinary crimes although some special crimes have been excluded.

'It is true that modern criminology does not encourage the imposition of severe or savage sentences against criminals, because the deterrent or punitive aspect of punishment is no longer treated as a valid consideration in the administration of Criminal law. But it must be remembered that ordinary offences with which tile normal criminal law of the country deals are committed by persons either under the pressure of provoked and unbalanced emotions, or as a result of adverse environments and circumstances, and so, while dealing with these criminals who, in many cases deserve a sympathetic treatment and in a few cases, are more sinned against than sinners, criminal law treats punishment more as a reformative or corrective than as a deterrent or punitive measure.'

In considering the punishment for the offence of rape, I think it proper to refer to some observations made in Gour's Commentary.

'The offence owes its enormity to the defilement and dishonour it reflects on the whole family. For, if men prize anything above all others, it is the honour of their women, and their forcible ravishment arouses all those feelings of retaliation and revenge which have accounted for so much bloodshed in history.'

In Emperor v. Mahadeo Tatya, AIR 1942 Bom 121 (FB) Beaumont C. J. considered three to five years as a normal sentence for an offence of rape. The counsel for the appellant invited my attention to the case State v. Rameshwar, AIR 1951 Raj 30 decided by this Court. This Court while convicting Rameshwar of an offence of rape upon a minor girl awarded a sentence of one year only and the conviction and sentence were affirmed by the Supreme Court, vide AIR 1952 SC 54.

In the present case, there are circumstances both aggravating as well as mitigating. As an instance of mitigating circumstance, I may point out that the conduct of Arjun and Gopal in going with Mst. Draupdi to the hotel and availing of free drinks offered by Gopi Shanker in the presence of Mst. Draupdi at an odd hour of the night and their subsequent conduct indicate their indifference and one of the reasons recited in Gour for treating the offence of rape as an offence of mere gravity may be said to be missing in the present case. The present case can be conceived as the case where the girl having visited Agra Hotel under some kind of pre-arrangement the accused exploited the situation, over stepped and committed excesses with the girl and thus made themselves liable for the offence.

The injuries suffered by Mst. Draupdi on the genitals have also not been shown to be very severe. These circumstances may be rightly conceived as mitigating circumstances. As an instance of aggravating circumstance, I may point out that the hotel is a public place and is visited by persons without any risk to themselves. The owner of the hotel and the employees have special responsibility to behave properly and if the proprietor and the employees behave in the manner in which they are proved to have done in the present case a serious view of their conduct deserves to be taken. It is also to be regretted that the girl was thrown in a naked condition on the road with complete indifference to considerations of decency. On balancing all considerations, I think a sentence of two years for an offence under Section 376 and 18 months and a fine of Rs. 500 for an offence under Section 376 read with Section 109, Indian Penal Code, will meet the ends of Justice.

46. The appeals are partially accepted. Conviction of Gopi Shanker under Section 378 is altered to one under Section 376 read with Section 109 and the sentence is reduced to 18 months and a fine of Rs. 500. His conviction and sentence under Section 323 are maintained. Convictions of Mahesh Chand. Shiv Kumar, Sher Singh and Dhan Singh under Section 376 are maintained but the sentences are reduced to two years' rigorous imprisonment. Their convictions and sentences under Section 323 are maintained. Convictions and sentences of all the accused under Section 342 are set aside. Convictions of Sher Singh and Ram Chand under sections 376 and 342 are set aside and convictions and sentences under Section 323 are maintained. Conviction and sentence of Tulsi on all counts are set aside. Tulsi is on bail and need not surrender.

Sher Singh and Ram Chand have undergone sentence under Section 323 Indian Penal ode and they shall be released forthwith, if not required in connection with any other case. The sentences shall run concurrently.

47. Prayer to leave to appeal to Supreme Court made both by the State as also the accused is rejected.


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