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52. As per the IPC, where a woman is raped by one or more persons constituting a group or acting in furtherance of common intention, all those persons shall be deemed to have committed the offence of gang rape. It is the case of the prosecutrix that in the intervening night of 05.11.2014 and 06.11.2014 Wasim, Kadir and the juvenile in conflict with law committed rape on her.

42 cr-appeal-336-16+4.odt SUBMISSIONS

53. Mr. Arjun Bobde, learned counsel appearing on behalf of Wasim vehemently submitted that there was no injury on the private parts of the prosecutrix. Though, hymen was ruptured but it was an old injury and no signs of force or restrain to penetrative assault were seen. All these rule out the possibility of forceful rape much less gang rape. The material on record also does not suggest any injury except injury on her elbow and below the right eye. According to him, if the alleged incidents of gang rape occurred on the ground in the jungle and if a person is raped on an earthy surface, particularly, if it is a case of gang rape then injuries on other parts of the body, more particularly on the back of the victim are bound to be present. Even the nail clippings of the prosecutrix suggest that no attempts were made by the prosecutrix to resist the accused. Therefore, all these suggest that no incident of rape occurred, much less gang rape. He further went on to submit that if forceful gang rape is committed then injury on the private part of the prosecutrix is one of the determining factors which is conspicuously absent in this case.

60. Evidently, there is no injury on the private parts of the prosecutrix inspite of having deposed that she was subjected to repeated sexual intercourse by Wasim, Kadir and the juvenile in 48 cr-appeal-336-16+4.odt conflict with law during the intervening night of 05.11.2014 and 06.11.2014. However, at the same time, we cannot ignore the fact that the prosecutrix was made to drink large quantity of liquor and she was under the influence of it. This is evident from the CA report reflecting the presence of Alcohol in the blood of the prosecutrix, the sample of which was taken by Dr. Dipti Shrirame (PW10) in the afternoon of 06.11.2014. The counsel for the appellants have themselves admitted that Wasim and the prosecutrix knew each other prior to the incident which suggests that they were well acquainted with each other prior to the alleged incident. Apart from that, the prosecutrix was surrounded by three strong men and she was inebriated. These factors are self explanatory as to why the prosecutrix did not resist when she was being subjected to sexual assault. Rather, it was not the case that physical force was used by each one of them while committing sexual intercourse. The seizure panchnama of the leggings shows that it was soaked with dust which proves that she was made to lie down on an earthy surface. The absence of injury on the back and other parts of the body of the prosecutrix inspite of repeated sexual intercourse by the three of them has been sufficiently explained by the learned APP as the prosecutrix was habitual to sexual intercourse. Therefore, absence of injury on the body of the prosecutrix is already explained and it would not be of any advantage to the accused.

62. In the case of Rajendra @ Raja Bhat Vs. Bajrang Shankarpale Vs. State of Maharashtra10 it has been held as under:-

"a] Absence of injury on private part of prosecutrix who is a mother of grown up child, therefore absence of injuries on the private part of the prosecutrix would not rule out the rape.
b] When evidence of prosecutrix is cogent, convincing and true, it can be acted upon without corroboration.
c] Non-examination of doctor Cannot be fatal to prosecution case when the evidence led otherwise is sufficient, reliable and cogent and there is no good reason to disbelieve."

77. In the light of the legal principles discussed above, we will now consider whether it is safe to convict the accused solely on the evidence of the prosecutrix in absence of supporting medical evidence 59 cr-appeal-336-16+4.odt and whether the evidence of the prosecutrix inspires confidence, is trustworthy, unblemished and of a sterling quality.

78. From the version of the prosecutrix, it is revealed that after putting Dinesh on the Railway track, Wasim, Kadir and the juvenile in conflict with law took her to Nagpur Road and halted their vehicle near a Dhaba. Wasim and Kadir alighted from the vehicle and went towards the Dhaba. The juvenile in conflict with law made physical relations with the prosecutrix and thereafter, proceeded ahead. At about 4:30 am in the jungle, they made the prosecutrix descend from the vehicle. Wasim committed sexual intercourse with the prosecutrix and thereafter, Kadir also committed sexual intercourse with her. The third incident of rape, according to the prosecutrix, was at about 9:00 to 9:30 am between chhota Shegaon and Tadoba road where they made her get down from the vehicle and thereafter, Wasim and Kadir had sexual intercourse with her. Dr. Dipti Shrirame (PW10), who clinically examined the prosecutrix has found two injuries on the person of the prosecutrix i.e. abrasion over right elbow and contusion below right eye with swelling. On genital examination of the prosecutrix, she found that her hymen was torn as a result of an old injury and two fingers were easily inserted. Ultimately, she opined that the prosecutrix was subjected to sexual intercourse. She also took 60 cr-appeal-336-16+4.odt blood sample, vaginal swab and pubic hair of the prosecutrix and sealed it.