T.N.R. Tirumalpad, J.C. - (1.) THIS is an appeal by the State against the acquittal of the two respondents of the charge under Section 376 I.P.C. by the Additional Sessions Judge Shri M. Radhamohan Singh. It may be mentioned here that the Sessions Judge while acquitting the respondents of rape under Section 376 I.P.C. on the ground that he was not satisfied regarding the evidence of penetration, convicted them under Section 354 I .P C. and sentenced each of them to one year's R.I. The appeal is filed by the State on the ground that the conviction should have been under Section 376 I.P.C. as there was evidence of rape and that it should not have been under Section 354. It may also be mentioned that the 2 respondents have not appealed against their conviction and sentence under Section 354 I.P.C.
(2.) THE facts are as follows. - On 23 -6 -61 at about 7 -00 p.m. P.W. 15 Ibemhal Devi, aged about 26, the mother of 3 children and the wife of P.W. 7 Bira Singh was returning home alone along Kangchup Road from the house of her brother -in -law Jugeswar Singh. When she arrived near the compound of one Nabadwlp Sarma, the two respondents who were going on one cycle saw her and began following her and talking to her. This was seen by P.Ws. 1 and 5. who were also passing along that road at the time. It was a moon -light night and P. W. 15 could also see their faces in the light of the motor vehicles which passed and also the dynamo light of the cycle and she found that they were persons unknown to her. When the woman had reached a lonely place in the road, the two respondents began to use indecent language to her and the first respondent started tapping her on the back and embracing her. Thereupon P. W. 15 pushed him aside and ran to the other side of the road. But the respondents followed her to the other side and she was forcibly pushed down on her back In a muddy place on the road side where there were thorny bushes and she was gagged and threatened with a Khukri in attempting to ward of the Khukri she got injured and in that situation she was successively raped first by the first respondent and then by the second respondent, each respondent alternatively holding her to help the other in the rape. After the rape, they ran away. P. W. 15, who had received injuries washed in private parts near a nullah and then proceeded home and reported the incident to P. W. 3 her mother -in -law and P.W. 3. immediately sent P.W. 2 to fetch the victim's husband Bira Singh (P.W. 7) from the nearby Co -operative Society. On the arrival of P, Ws. 2 and 7, P.W. 15 reported the occurrence to both of them and requested her husband to take action immediately and said that she would be able to identify the culprits and further that the culprits were saying that they were going to some Basek in the locality, Immediately, P.Ws. 2, 7 and 15 started to the place where there was the Basek performance and on the way they saw some cyclists passing and P.W. 15 them pointed out one of them as the person who had committed rape on her that night. They followed the cyclists who had gone to a nearby hotel and inside the hotel P.W. 15 caught hold of the second respondent and said he was one of the persons who raped her. Thereupon, the second respondent who had a Khukri with him was about to attack P.W. 15 and P.Ws, 2 and 7 intervened and a struggle ensued in which the second respondent got injured in his palm and he was arrested by the villagers who had arrived by that time and taken to a nearby house where he was said to have made an extra judicial confession before the villagers . who had apprehended him including P.W. 9.
(3.) WHEN they were all thus assembled in the house, P. W. 16, A.S.I., who was in charge of the Police flying; squad and had got information about this rape arrived at the place and took charge of the second respondent. Then P. W. 16 took with him the 2nd respondent and P. W. 15 along with the latter's husband P.W. 7. While the second respondent was being taken to the hospital by P.Ws. 16. P.W. 7 went to the Police Station and gave the written report Ext. A/3 about the incident to P.W. 18, who was then in charge of the Imphal Police Station. P. W. 18. immediately recorded the statement of P.W. 7. Soon thereafter when the victim P.W. 15 was handed over at the Police Station by P.W. 16, P.W. 18 seized the Phanek worn by P.W. 15 containing mud stains and as he saw that she had injuries she was sent to the hospital. Subsequently, she took P.W, 18 to the place of occurrence and pointed out the place where the offence was committed. From that place, a broken Urikmala which the victim was wearing the previous night was seized by the Police as well as the black hair found sticking to the thorny plants. It is not necessary to go into too many details. But it is sufficient to say that the second respondent made a confession before a Magistrate and further that the second respondent was identified in as identification parade by P.W. 1 who had seen him in the night near the victim on the road shortly before the occurrence. The first respondent, who was absconding was arrested on 18 -7 -61 and in the subsequent identification parade the first respondent was identified by P.W. 1 and P.W. 15. Subsequently, both the accused were committed to the Sessions and in the Sessions trial, they were convicted and sentenced as stated above.;