LexSTATE OF RAJASTHAN versus ROSHAN KHAN & ORS.
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A B [2014) 1 S.C.R. 418 STATE OF RAJASTHAN V. ROSHAN KHAN & ORS. (Criminal Appeal Nos. 79-80 of 2005) JANUARY 15, 2014 [A.K. PATNAIK AND GYAN SUDHA MISRA, JJ.] Penal Code, 1860: c ss.376(2)(g) and s.366 - Gang rape - Six accused convicted by trial court - Acquittal by High Court - Held: Prosecution case that the six accused committed gang rape on the prosecutrix has been established by her evidence and the evidence of her father as corroborated by medical 0 evidence and FSL report - Judgment of High Court set aside and that of trial court convicting all accused of offences charged and sentencing them to 10 years RI and 4 years RI under the two counts, restored. s.376(2)(g), Explanation 1 - Gang rape - Presumption E - Held: In the instant case as per medical evidence, four persons had committed rape on prosecutrix - Explanation 1 to s.376(2)(g) states that where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to F have committed gang rape within the meaning of the sub- section - It is, therefore, not necessary that prosecution should adduce clinching proof of a completed act of rape by each one of the accused on the victim. G H Evidence Act, 1872: s.114-A - Presumption in a gang rape uls 376(2)(g), /PC - Held: Since prosecutrix has categorically said that sexual intercourse was committed by accused persons without her 418 STATE OF RAJASTHAN v. ROSHAN KHAN & ORS. 419 consent and forcibly, court has to draw the presumption that A she did not give consent to the sexual intercourse committed on her by accused persons - - The defence has not led any evidence to rebut the presumption - High Court could not have, therefore, held that there were circumstances to show that prosecutrix had gone on her own and on this ground B acquitted the respondents-Penal Code, 1860- ss.376(2)(g). FIR Gang rape - Four hours delay in filing FIR - Held: Delay has been sufficiently explained by informant. C Accused-respondents nos. 1 to 6 were prosecuted for committing offences punishable u/ss 376(2)(g) and 366 IPC on the allegations that in the night of occurrence, they took away a 16 years old mentally deficient girl to a o secluded place and committed rape on her. The trial court convicted all the six accused of the offences charged and sentenced each of them to 10 years RI and 4 years RI under the two counts. However, the High Court acquitted them of both the charges. E Allowing the appeals, the Court HELD 1.1. The informant (PW-1 ), father of the prosecutrix, has deposed that 28.04.1999 was the date of marriage of the daughter of his brother and during dusk F time on 27.04.1999, his daughter (the prosecutrix), who was 14 years old and not mentally balanced, had gone to call the ladies of the locality and when she did not return, he went to search her, on the scooter driven by his brother. They saw five persons, standing near an old G dilapidated building, who on seeing them, fled away. When they went inside, they found that the prosecutrix was crying and accused 'A' was lying over her and having sexual intercourse with her. The prosecutrix (PW- 2) has categorically stated that all the six persons H 420 SUPREME COURT REPORTS [2014] 1 S.C.R. A committed rape on her without her consent and forcibly. The evidence of PW-1 and PW-2 that all the six respondents had committed rape on the prosecutrix is also corroborated by the complaint (Ext.P-1) made by PW-1 to the police within a few hours of the incident, as B provided in s.157 of the Evidence Act. PW-7, the doctor has opined after medically examining the prosecutrix that there was nothing to suggest that she had not been raped. The report of the FSL supports the prosecution case. The medical evidence, therefore, also corroborates c the evidence of PW-1 and PW-2 that there was sexual intercourse between the prosecutrix and the accused persons. [para 10, 11 and 14] [427-0-G; 428-8, D; 430-F- G; 431-8-C] 1.2. Section 114A of the Evidence Act, 1872 clearly D provides that in a prosecution for rape under clause (g) of sub-s. (2) of s.376, IPC, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the court that E she did not consent, the court shall presume that she did not conse.nt. Si
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