P.G. Biju and Others v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON MONDAY, THE 15TH DAY OF JULY 2019 / 24TH ASHADHA, 1941** ## **CRL.A.No.967 of 2014** **AGAINST THE JUDGMENT IN SC 625/2012 of SESSIONS COURT,THALASSERY DATED 28-06-2014** **AGAINST THE ORDER/JUDGMENT IN CP 13/2012 of JUDICIAL MAGISTRATE OF FIRST CLASS ,MATTANNUR** **CRIME NO.490/2011 OF Ulikkal Police Station, Kannur** ## **APPELLANTs/ACCUSED 1 TO 4:** - **1 P.G.BIJU AGED 39 YEARS S/O. GOPALAN, PLANTHOTTATHIL HOUSE, VAYATHUR AMSOM, ULIKKAL.** - **2 MUHAMMED SHEREEF AGED 29 YEARS S/O. MUHAMMED, KANNOTH HOUSE, VAYATHURAMSOM ULIKKAL.** - **3 MUHAMMED SALI AGED 24 YEARS S/O. ABDUL AZEEZ, KOMBANAPARAMBIL HOUSE, VAYATHUR AMSOM, ULIKKAL.** Crl.Appeal No.967/14 -:2:- **4 N.I.JAMSHEER AGED 24 YEARS S/O. ISMAIL, NADUTHUNDIL HOUSE, NUCHIYAD AMSOM, MANIPPARA.** **BY ADVS. SRI.P.S.SREEDHARAN PILLAI SRI.AJEESH K.SASI SMT.MITHA SUDHINDRAN SMT.POOJA PANKAJ SRI.ARJUN SREEDHAR SRI.ARUN KRISHNA DHAN SRI.C.JAYAKIRAN SRI.M.REVIKRISHNAN SRI.P.M.RAFIQ SRI.P.VIJAYA BHANU (SR.) SRI.T.K.SANDEEP SRI.V.C.SARATH SRI.VIPIN NARAYAN** ## **RESPONDENT/RESPONDENT &STATE:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 31.** **BY ADVS. SMT.S.AMBIKA DEVI, SPL.PP FOR ATTROCITIES AGAINST WOMEN AND CHILDREN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.03.2019, THE COURT ON 15.7.2019 DELIVERED THE FOLLOWING:** Crl.Appeal No.967/14 -:3:- ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal has been preferred by the appellants challenging the judgment of conviction and order of sentence passed by the learned Sessions Judge, Thalassery in S.C. No. 625 of 2012 dated 28/06/2014 arising out of Crime No. 490 of 2011 of Ulikkal Police Station. The appellants were convicted and sentenced for offences as under:- Accused nos. 1 to 3 were found guilty under Section 366(A) of the Indian Penal Code, 1860 (for short 'IPC') and were sentenced to suffer rigorous imprisonment for a period of six years each and to pay a fine of `25,000/- for the said offence. All the accused were found guilty for offence under Sections 323, 342, 376(2)(g) read with Section 34 of IPC. All of them were sentenced to undergo rigorous imprisonment for one year each for offence under Section 323 read with Section 34 of IPC. They were punished with same period of imprisonment as above for offence under Section 342 read with Section 34 of IPC. A1 to A4 were also sentenced to undergo imprisonment for life and to pay a fine of `1,00,000/- (Rupees One Lakh only) each with a default stipulation of Crl.Appeal No.967/14 -:4:- rigorous imprisonment for one year each for offence under Section 376(2)(g) read with Section 34 of I.P.C. 2. Prosecution has the following case against the appellants:- The victim (PW4) is a minor girl hailing from West Bengal. She reached Peravoor-Mannathla in Kannur district of Kerala in search of her lover Ringtu along with her relative Akbar Ali (PW5). She reached Kannur on 23/12/2011. On 24/12/2011, she called Jamarul Islam (PW3), who is her sister's husband over phone and told that several persons are accommodated in the house of PW5 and so it is inconvenient for her to stay there and she wanted to meet Ringtu, her lover. As some workers from West Bengal were working at Perumbadi in Karnataka, he took her to Perumbadi with another relative by name Jayrul Islam (CW3 S/o PW5) to the work site in search of Ringtu. But she could not meet him there. Hence, they returned to catch a bus from Perumbadi to Kuttupuzha. While they were walking through the road to catch a bus, one bus came, but it did not stop. While so, a lorry bearing Registration No. KL 59-8329 driven by A3 with A1 and A2 was coming after unloading laterite stones at Karnataka and they offered a lift to them. As it was late and they could not fetch any Crl.Appeal No.967/14 -:5:- other vehicle, they boarded the lorry believing that they could soon reach their place of stay. The victim and PW3 got into the cabin where A1 and A2 were sitting and CW3 got into the platform of the lorry. After a short while, A3 who was driving the lorry deviated the way by taking a different route. Then, A1 made some sexual advances to the victim and tried to tear off her dress. So, PW3 requested to stop the vehicle to enable them to get down. But the lorry proceeded to Vayakkara ignoring their protest and they stopped the lorry near a lonely place near Vayathur river. It was at about 09.30 p.m. Then A1 to A3 forcibly attempted to make them drink liquor, but due to their resistance, it spilled on their dress. Then A3 brought CW3 into the cabin by force and the accused wrongfully confined PW3 and CW3 in the cabin and A1 dragged the victim out of the lorry and took her to the river side, torn off her dress and committed rape on her. Thereafter, A2 and A3 also committed rape on her one after another ignoring her cries and wailing for help. By that time, A4 came there in a motor bike bearing Registration No.KL-59 D/5339 and joined other accused to confine PW3 and CW3 inside the cabin and assaulted them. Thereafter, A4 also committed rape on her. After that, the victim who was completely naked, was taken Crl.Appeal No.967/14 -:6:- to the lorry and she was put in the cabin. PW3 and CW3 were put in the platform and they took the vehicles through Iritty-Irikkur road. PW3 and CW3 were pushed out of the lorry on the road side near a school and they took the victim further through the road and thereafter abandoned her on the road and fled away. PW3 and CW3 ran behind the lorry to rescue the victim. At that time, one Sasi (PW19) who is residing near the roadside happened to see the victim crying and running naked through the road. He called one Abdulla (PW20) who is his neighbour and gave her a nightie to wear and a glass of water to drink. Police was informed and the victim was taken to the police station. 3. Prosecution examined PW1 to PW34 as witnesses, marked Exts.P1 to P61 documents and identified MO1 to MO16 as material objects. Exts.D1 to D24 were marked and DW1 and DW2 were examined from the side of the defence. After closing of the prosecution evidence, the accused were questioned under Section 313 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.'). They denied the incriminating circumstances levelled against them and claimed that they are innocent. According to them, they were falsely implicated in the case due to political rivalry. Crl.Appeal No.967/14 -:7:- 4. Court below found that all of the accused are liable for offences as already described including gang rape. The short question before us is whether the trial Court was justified in arriving at its conclusion. To determine the same, it would be convenient to discuss the whole case under the following heads: - i. Whether the victim was a minor at the time of incident as alleged by the prosecution? - ii. Whether accused/appellants had committed offence under Section 366(A) of IPC as alleged? - iii. Whether the appellants committed rape on the victim with common intention so as to bring it to the offence of gang rape which attracts joint criminal liability for all accused as alleged by the prosecution? - iv. Whether the appellants had wrongfully confined CW3 and PW3 as alleged and that they were inflicted with injuries as alleged? 5. The evidence adduced, in short, are as follows: PW1, Abdul Rajak is a primary school teacher at Kabilpur, West Bengal. Ext.P1 is the certificate issued by him to prove the age of the victim. Date of birth is shown as 10/02/1997. PW2 Shah Jamal was examined to prove Ext.P2 residence certificate of the victim Crl.Appeal No.967/14 -:8:- which shows that she is the daughter of one Abdul Malik and is a resident of Kabilpur Grama Panchayath. PW25 is the then Senior CPO of Kelakam Police Station and he went and collected Exts.P1 and P2 as directed by the Investigating Officer (I.O). He entrusted them to the I.O. PW3 Jamarul Islam was with the victim at the time when the incident took place. PW4 is the unfortunate victim. PW5 is the father of CW3 and the victim is his cousin. The victim had travelled with him to Kerala from West Bengal at the relevant instance. PW19 is one Sasi. PW20 is one Abdulla. Both of them deposed that they had seen the victim naked on the road crying on 24/12/2011 at about 10.30 P.M. PW21 is one Praveen who was constructing a residential house near Perumbadi-Mysore road. He entrusted the plastering works of the building to PW16 Denny and workers from Bengal were doing the work. PW29 is the SubInspector of Iritty Police Station at the relevant time. On receiving information, he proceeded to the spot and had taken the victim, PW3 and CW3 to the police station. He entrusted the victim to a woman Civil Police Officer (CPO) and proceeded for his routine duty. On 25/12/2011, when he reached the police station, the girl was found perplexed and behaved as if she was having some mental problem and hence she was taken to Government Crl.Appeal No.967/14 -:9:- Hospital, Iritty. On realizing that the victim was raped, the victim and others were taken to Ulikkal Police Station as it was the jurisdictional police station. PW31 is the S.I. of Police, Ulikkal Police Station. He recorded Ext.P3 FIS given by PW3 based on which Ext.P3(b) FIR was registered. PW15 Biju Thomas translated the FI statement of PW3 to PW31. Ext.P3(a) is his signature in Ext.P3. PW16 Denny Abraham is a sub contractor. He turned hostile to the prosecution. PW32 is the then C.I. of Police who investigated the case. Ext.P8 is the scene mahazar prepared by him. Ext.P8 reveals that the place of occurrence is the mud road end leading to the river bank at Vayathur amsom where wild trees and bushes were grown. He recovered MO1 churidar top of the victim which was torn off, MO2 sweater and MO3 shoes of the victim as per Ext.P8 mahazar in the presence of PW6. Ext.P9 is also prepared by PW32 as an annexure to Ext.P8 on 12/01/2012. PW24 is the Village Officer, Vayathur who prepared Ext.P25 scene plan. PW32 arrested A1 to A3 on 26/12/2011 at 04.00 P.M. Ext.P42 is the arrest memo of A1, Ext.P43 that of A2 and Ext.P44 that of A3. Exts.P45, P46 and P47 are the respective inspection memos of these accused. On the same day, at 04.30 p.m., PW32 arrested A4 and Ext.P48 is the arrest memo and Ext.P49 is the Crl.Appeal No.967/14 -:10:- inspection memo. Motor cycle with Reg.No. KL-59 D/5339 of A4 was seized as per Ext.P10 mahazar in the presence of PW8. Ext.P50 is the report showing complete details of accused. Ext.P51 is a request to add Section 376(2)(g), 342, 323 read with Section 34 of I.P.C. Exts.P26, P27, P28 and P29 are the respective certificate of potency of A1 to A4. PW27 conducted the said tests on 27/12/2011. PW27 deposed that the accused are potent. As per Ext.P11 mahazar, lorry involved in the case was seized. PW10 is the then Senior CPO of Ulikkal Police Station. He is an attestor to Ext.P12 mahazar for collecting mud from the lorry by Scientific Assistant. PW22 deposed that A1 to A3 unloaded two loads of stones to his construction site at Perumpadi, Karnataka on 24/12/2011. He identified A1 to A3. MO12 is the lorry involved in the incident which was seized as per Ext.P11 mahazar. Based on the disclosure statement of A1, MO13 brazier and MO14 panties of the victim were recovered from the bushes of the bank of Vayathur river as per Ext.P15 mahazar for which PW13 is a witness. PW13 identified MO13 and MO14 in Court. PW14 is a native of Vayathur and he is an attestor to Exts.P15 to P19 mahazars prepared for the seizure of dresses of the accused. PW17 deposed that A1 to A3 collected laterite stones from him in Crl.Appeal No.967/14 -:11:- the morning at 6.00, and left to Karnataka with the load by 11.00 a.m. PW22 corroborated the version of PW17 by stating that A1 to A3 had unloaded stones in his property for construction purpose on 23[rd] and 24[th] of December, 2011. PW23 is the Thahsildar of Virajpetta and he prepared Ext.P24 map which shows the route from Virajpetta to Iritty. PW33 is Dr.Jayachandran who was the then Scientific Assistant, FSL, Kannur. Ext.P59 is the forwarding note of the Investigating Officer and Exts.P59 and P60 are the reports. PW18 is a Homeopathic Doctor from West Bengal. He translated the statements of PW3, CW3 and PW5 which was in Bengali language to Malayalam to the investigating officer and he was taken to Medical College Hospital, Kozhikode. Exts.P21, P22 and P23 are signatures he put in the respective depositions. 6. To prove that the victim is a native of West Bengal, prosecution relied on the evidence of PW1, PW2 and PW25 as independent source besides the version of PW4 the victim, and PW3 and PW5. 7. PW1 deposed that he is working as Head Teacher in a primary school at Kabilpur. The victim was a student of his school and her father is a person known to him. According to him, C.I. of Police, Iritty Police Station came to his place for investigation and Crl.Appeal No.967/14 -:12:- after perusing school register, he had issued a certificate to the effect that her date of birth is 10[th] February 1997. The said certificate is issued on 18/02/2012 which bears the seal of the school and his signature. The relevant page of the register had been taken, but it was not furnished earlier to the accused and hence its marking was objected. So, only the certificate was marked as Ext.P1. He stated that at the time of admission of the student, he was not in service but all details were seen recorded in the register and he prepared Ext.P1 on the basis of entries in the said register which he verified personally. 8. PW2 Shah Jamal was the Gramaprathan of Kabilpur Grama Panchayath. He deposed that the victim and her parents are known to him. The victim and her family were residing only 3 minutes walking distance from his house. Ext.P2 is the residence certificate issued by him showing full address of the victim. Ext.P2 bears the seal and signature of PW2. As per Ext.P2, the victim is the daughter of one Abdul Malik and is a permanent resident of Kabilpur Village of Murshidabad, West Bengal. 9. PW25 was working as Senior CPO of Kelakam Police Station who was a member of Special Investigation Team in this case. According to him, he had gone to West Bengal as a member Crl.Appeal No.967/14 -:13:- of the team and collected Ext.P1 and Ext.P2 from PW1 and PW2 respectively. 10. Based on the evidence of the above witnesses, learned Sessions Judge concluded that the victim is a native of Kabilpur Village of Murshidabad, West Bengal and that she was a minor at the time of incident as Ext.P1 shows her date of birth as 10[th] February, 1997. 11. Court below further placed reliance on the testimony of PW4, the victim, PW3 who was with her at the time of incident and the medical evidence to find the guilt against the appellants. 12. The incident happened on 24/12/2011 which is prior to the coming into force of the Criminal Law (Amendment) Act, 2013. Hence it would be appropriate to quote the relevant provisions in I.P.C. prior to its amendment. Rape is defined under section 375 which reads as under: _“_ _**375. Rape.** —A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:— Firstly— Against her will. Secondly—Without her consent._ _Thirdly— With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt._ Crl.Appeal No.967/14 -:14:- _Fourthly—With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married._ _Fifthly— With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent._ _Sixthly—With or without her consent, when she is under sixteen years of age._ _Explanation—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape._ _Exception - Sexual intercourse by a man with his own wife,_ _the wife not being under fifteen years of age, is not rape._ Punishment for rape is provided under Section 376 of I.P.C. and the relevant provision prior to 2013 Amendment reads as follows: ## “ _**376. Punishment for rape** .—_ _(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:_ _Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years._ _(2)Whoever,—_ Crl.Appeal No.967/14 ## -:15:- ## ## ## _(g) commits_ _**gang rape** ,_ _shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years._ _Explanation 1.—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 have committed gang rape within the meaning of this sub-section._ ## 13. Apex Court in _**Pardeep Kumar v. Union Administration, Chandigarh**_ [(2006) 10 SCC 608] narrated the requirements to treat an offence of rape into one of gang rape as follows: _“10. To bring the offence of rape within the purview of Section 376(2)(g), IPC, read with Explanation 1 to this Section, it is necessary for the prosecution to prove:-_ _(i) that more than one person had acted in concert with the common intention to commit rape on the victim ;_ _(ii) that more that one accused had acted in concert in commission of crime of rape with pre-arranged plan, prior meeting of mind and with element of participation in action._ _Common intention would be action in consort in prearranged plan or a plan formed suddenly at the time of commission of offence which is reflected by element of participation in action or by the proof of the fact of inaction when the action would be necessary. The prosecution would_ Crl.Appeal No.967/14 -:16:- _be required to prove pre- meeting of mind of accused persons prior to commission of offence of rape by substantial evidence or by circumstantial evidence; and_ _(iii) that in furtherance of such common intention one or more persons of the group actually committed offence of rape on victim or victims. Prosecution is not required to prove actual commission of rape by each and every accused forming group._ _11. On proof of common intention of the group of persons which would be of more than one, to commit the offence of rape, actual act of rape by even one individual forming group, would fasten the guilt on other members of the group, although he or they have not committed rape on the victim or victims._ _12. It is settled law that the common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances._ 14. Prosecution _inter alia_ vehemently argued that the evidence of Prosecutrix is enough to convict the accused. It is argued that, in this case, evidence of PW3, medical and other evidence corroborates the version of PW4. To substantiate her arguments, the learned Special Public Prosecutor Smt.S.Ambika Devi relied on the following decisions of the Apex Court and this Crl.Appeal No.967/14 ## -:17:- Court:- ## (i) _**State of A.P. v. Gangula Satya Murthy**_ [(1997) 1 SCC ## 272]. It was held at paragraph 27 as under:- _**“27.** Before parting with the case, we would like to point out that the courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of late crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman’s rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasise that the courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in the totality of the background of the entire case and not in isolation”xxxxx_ . ## (ii) _**State of Maharashtra v. Chandraprakash Kewalchand Jain**_ [(1990) 1 SCC 550]. It was held at paragraphs ## 16 and 17 as under:- _**“16.** A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The_ Crl.Appeal No.967/14 ## -:18:- _same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage:_ _“It is only in the rarest of rare cases if the court finds that the testimony of the prosecutrix is so trustworthy, truthful_ Crl.Appeal No.967/14 -:19:- _and reliable that other corroboration may not be necessary.” With respect, the law is not correctly stated. If we may say so, it is just the reverse. Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation._ _**17.** We think it proper, having regard to the increase in the number of sex violation cases in the recent past, particularly cases of molestation and rape in custody, to remove the notion, if it persists, that the testimony of a woman who is a victim of sexual violence must ordinarily be corroborated in material particulars except in the rarest of rare cases. To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Ours is a conservative society where it concerns sexual behaviour. Ours is not a permissive society as in some of the western and European countries. Our standard of decency and morality in public life is not the same as in those countries. It is, however, unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. An Indian woman is now required to suffer indignities in different forms, from lewd remarks to eve-teasing, from molestation to rape. Decency and morality in public life can be promoted and protected only if we deal strictly with those who violate the societal norms. The standard of proof_ Crl.Appeal No.967/14 ## -:20:- _to be expected by the court in such cases must take into account the fact that such crimes are generally committed on the sly and very rarely direct evidence of a person other than the prosecutrix is available. Courts must also realise that ordinarily a woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity.”_ ## (iii) _**State of Himachal Pradesh v. Asha Ram**_ [(2005) 13 ## SCC 766]. Paragraph 5 reads thus:- _**5.** We record our displeasure and dismay, the way the High Court dealt casually with an offence so grave, as in the case at hand, overlooking the alarming and shocking increase of sexual assault on minor girls. The High Court was swayed by the sheer insensitivity, totally oblivious of the growing menace of sexual violence against minors much less by the father. The High Court also totally overlooked the prosecution evidence, which inspired confidence and merited acceptance. It is now a well-settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital, unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is also a well-settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given circumstances. The evidence of_ Crl.Appeal No.967/14 ## -:21:- _the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case”._ ## (iv) _**State of H.P. v. Shree Kant Shekari**_ [(2004) 8 SCC ## 153]. Paragraph 18 reads thus:- _**“18.** The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging the first information report cannot be used as a ritualistic formula for discarding the prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the court is to only see whether it is satisfactory or not. In case if the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand, satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of the prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen her. That being so, the mere delay in lodging of the first information report does not in any way render the prosecution version brittle. These aspects were highlighted in Tulshidas Kanolkar v. State of Goa.”_ ## (v) _**State of Madhya Pradesh v. Dayal Sahu**_ (2005 (4) KLT 426). Paragraph 16 reads thus:- Crl.Appeal No.967/14 -:22:- _“16. A plethora of decisions by this Court as referred to above would show that once the statement of prosecutrix inspires confidence and accepted by the courts as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the courts for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. It is also noticed that minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. Non examination of doctor and non production of doctor's report would not cause fatal to the prosecution case, if the statements of the prosecutrix and other prosecution witnesses inspire confidence. It is also noticed that the Court while acquitting the accused on benefit of doubt should be cautious to see that the doubt should be a reasonable doubt and it should not reverse the findings of the guilt on the basis of irrelevant circumstances or mere technicalities”_ . ## (vi) _**Ranjit Hazarika v. State of Assam**_ [(1998) 8 SCC ## 635] Paragraph 5 reads thus:- _“_ _**5.** The argument of the learned counsel for the appellant that the medical evidence belies that testimony of the prosecutrix and her parents does not impress us. The mere fact that no injury was found on the private parts of the prosecutrix or her hymen was found to be intact does not belie the statement of the prosecutrix as she nowhere stated that she bled per vagina as a result of the penetration of the penis in her vagina. She was subjected to sexual intercourse in a standing posture and that itself indicates the absence of any injury on her private parts. To_ Crl.Appeal No.967/14 -:23:- _constitute the offence of rape, penetration, however slight, is sufficient. The prosecutrix deposed about the performance of sexual intercourse by the appellant and her statement has remained unchallenged in the crossexamination. Neither the non-rupture of the hymen nor the absence of injuries on her private parts, therefore, belies the testimony of the prosecutrix particularly when we find that in the cross-examination of the prosecutrix, nothing has been brought out to doubt her veracity or to suggest as to why she would falsely implicate the appellant and put her own reputation at stake. The opinion of the doctor that no rape appeared to have been committed was based only on the absence of rupture of the hymen and injuries on the private parts of the prosecutrix. This opinion cannot throw out an otherwise cogent and trustworthy evidence of the prosecutrix. Besides, the opinion of the doctor appears to be based on “no reasons”._ ## (vii) _**State of Rajasthan v. Roshan Khan and Others**_ ## [(2014) 2 SCC 476) Paragraph 15 reads thus:- _**“15.** We cannot accept the submission of Mr Siddhartha Dave, learned amicus curiae for Respondent 5 that the finding given by the High Court that the prosecutrix may have gone with the accused persons on her own is a plausible one and should not be interfered with under Article 136 of the Constitution. As we have already noticed, the prosecutrix (PW 2) has deposed categorically that all the six persons had raped her without her consent and forcibly. Section 114-A of the Evidence Act, 1872 clearly provides that in a prosecution for rape under clause (g) of sub-section (2) of Section 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_ Crl.Appeal No.967/14 -:24:- _raped and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent. Since the prosecutrix (PW 2) has categorically said that sexual intercourse was committed by the accused without her consent and forcibly, the Court has to draw the presumption that she did not give consent to the sexual intercourse committed on her by the accused persons. The defence has not led any evidence to rebut this presumption. In our considered opinion, the High Court could not have, therefore, held that there were circumstances to show that PW 2 had gone on her own and on this ground acquitted the respondents”._ 15. Before adjudicating on the relevant issues we shall scan through the evidence of material witnesses. PW4 is the victim who hails from Kabilpur at Murshidabad and she is having mother, father, one sister, three elder brothers and one younger brother. She has studied only up to 5[th] standard at Kabilpur Primary School. According to her, Ringtu (a native of West Bengal) working at Kannur is her lover. She used to talk with him over phone. She came to Kannur along with PW5 her cousin as directed by Ringtu. She stated that she could not remember the exact date when she reached Kannur, but the date of incident was on 24/11/2011. According to her, when she reached Kannur, she stayed at the place where PW5 was residing and Ringtu was also residing there and they had food together. Thereafter Ringtu Crl.Appeal No.967/14 -:25:- went away from there. So she contacted PW3, who is her relative and requested him to make an enquiry about Ringtu and when she made the phone call to PW3, he came there and they went to the construction site in the afternoon in search of Ringtu where a new building was being constructed. But Ringtu was not there. PW3 told her that they could have food at 06.00 p.m. and by that time Ringtu would come. But Ringtu did not come. PW3 scolded her and she also spoke in anger to PW3. Then PW3 and CW3 started to do some work in the said building. Hence she got annoyed and she left the place and ran through the road. PW3 and CW3 followed her. While so, a lorry came and it took reverse. The driver of the lorry offered to the victim, PW3 and CW3 a lift to their place of residence at Iritty. She does not remember the exact time but it was night and hence they boarded the lorry. She sat along with PW3 in the cabin of the lorry. She described the accused persons as 'gunda' at the time of her evidence before the Court. She deposed that PW3 sat near the driver and the other accused sat near to him and she occupied the seat next to him and another accused sat on her other side. While the lorry was proceeding, the accused had forced herself and PW3 to consume liquor. But they refused to consume the same and then Crl.Appeal No.967/14 -:26:- the accused whom she described as 'fat gunda' (A1) kicked on her leg and held on her breast. So, they pleaded to stop the lorry, but lorry proceeded further and stopped near the forest where there was mud and water. Then A1 dragged her to a lonely place, tore off her dress including her undergarments and made her to lie down. She described the acts of the accused in her own way as _“A1 first caught on my breast and then did it on the organ through which I urinate and all the accused did the same to me”._ She shouted for help but ignoring the same he raped her. She further deposed that after A1 committed rape, she was left there and the other accused came and he too raped her and he had also beaten her when she tried to resist him. Thereafter the other man, who was the driver of the vehicle came and committed rape on her. She maintained that she was crying all the time but she could not resist the miscreants. Thereafter, A4 also came and committed rape on her. According to her, all the four accused have committed rape on her and she had severe pain and bleeding from her private parts. She could not speak about the duration of gang rape on her by the miscreants. After committing the rape, she was taken back to the lorry and she was totally naked. Then the accused put her in the cabin and PW3 and CW3 Crl.Appeal No.967/14 -:27:- in the platform of the lorry and proceeded further. She stated that then also she was sexually assaulted by the accused and when the lorry proceeded further, she jumped out and ran back, in a desperate attempt to meet PW3 and CW3 through the road. Some people gathered there on seeing her naked on the road and they gave her a nightie and a glass of water and at that time PW3 and CW3 also rushed to her and thereafter they were taken to the police station. She would also say that after the incident she had so much pain over her body and vagina and she remained in the hospital for so many days. She had identified A1 as the person, who committed rape on her for the 1[st] time and A3 as the driver and deposed that she could not identify the person who had raped her after A1. But she deposed that the driver had raped her as the 3[rd] man and 4[th] one was the person who came in the bike and he is in the Court. When she was asked to identify the accused, she stated that she could recognize all the four accused in the Court but she did not want to look at them and if she look at them she would get angry and she did not like to look at them. So she refused to look at them to identify A2 and A4. She had expressed her hatred and disgust towards the accused. So, A1 and A3 were identified by her in the Court at the time of her Crl.Appeal No.967/14 -:28:- examination. During cross-examination of PW4, the defence has brought out several omissions and contradictions. According to PW4, she had come from her native place along with Badushah (PW5). She also states that she knew Ringtu. As they were talking over telephone, Ringtu ran away immediately on seeing her. Later she says that she knew Ringtu at her native place itself and they were in love. She further deposed that PW3 asked her to go to her native place and offered to take her to her native place. They reached near the checkpost. Since she did not see Ringtu near the checkpost, she became angry and she ran through the road. PW3 and CW3 followed her. She does not know why the police had not recorded the said incident. She also did not give any statement to the police that the lorry went forward, came back and offered a lift. She did not tell the police that they offered some drink and she drank the same. She was forced to drink the same. According to her, she did not drink from the bottle. She also stated that she had not informed the police or to the Magistrate that when she made an attempt to jump from the lorry, the accused had caught hold of her neck and they closed her mouth. She does not know why the police did not record, that the accused had asked them to get into the lorry, that any Crl.Appeal No.967/14 -:29:- one of the accused had misbehaved to her in the lorry and that any of the accused had assaulted her or sexually abused her in the lorry. Yet another discrepancy is that, according to PW4, after the incident, she had bleeding from her private parts, and that she had told the police about it, but she had not stated the same to anyone else. With reference to the assault inside the lorry, she later says that she had informed the matter to the police and she does not know why the police had not recorded it. She did not tell any one that she saw a person coming in motorbike. She further states that she told the Doctor that she was having pain, but she does not know why it was not recorded by the police. She also denied the fact that after the first person had abused her, she ran away and she did not know why the police had made such a record. The said statement is recorded as Ext.D12. In Ext.D12(a), she appears to have sought help from a person who was coming, which she denied. There are several other material omissions and contradictions in her testimony. She further stated that police had shown her the accused at the police station and the photographs were also shown. 16. PW3 is one Jamarul Islam, S/o Badushah Shaik. He deposed before the Court that his native place is at Kabilpur, Crl.Appeal No.967/14 -:30:- Murshidabad, West Bengal. He has been in Kerala for the last two years. He is engaged with plastering works and was residing at Padiyoor, a place near Iritty. He would say that the victim involved in this case is the daughter of his mother-in-law's sister. She was residing close to his house, at West Bengal. His uncle, Badusha is also residing at Kerala at Manathala in connection with his works. On 24[th] December 2011, by about 10 O' clock, the victim has called him from the place where his uncle was residing and as requested by her, he has gone to her place. When he reached at Manathala, she told that one Ringtu is her lover and she wants to see him and she had come to Kerala to meet him, but it is inconvenient for her to stay there as so many persons from their place are residing there. So, in order to find out Ringtu, he made phone calls to some places where people from his place are working, but he could not locate him. As some persons from his place were working at Perumbadi, he made a call to Perumbadi to know whether Ringtu was there. But he did not get the telephone connection and so he started to Perumbadi with the victim and CW3 and alighted the bus in the check post and walked towards the work site which is just one kilometre away from the bus stop. He would say that he was working under one Crl.Appeal No.967/14 -:31:- Malik. When he reached in the work site, Malik was there and he told that some defect has happened in the plastering works done by him and asked him to cure the defect. So he just tried to correct the bent. Then, the victim got irritated and asked him, whether he had come over there in search of Ringtu or to do the work. Asking the same, she ran to the road and then he along with CW3 followed her. For a while they could not spot her, so he asked the local people and they told that she is running through the road leading to Kuttupuzha. There is a turning after the check post and there they met her. Then he asked her to follow him to the bus stand. At that time a bus came, but it did not stop even though they have shown signal for the same. The time was 7.00 p.m and at that time a lorry came and it just proceeded towards front and then came back. There were three persons in the lorry and the driver has asked where they have to go. Then they told that they wanted to go to Iritty and then they offered a lift and thus they boarded the lorry. As three persons were in the cabin of the lorry, he along with the victim entered into the cabin and CW3 entered into the platform on the back side of the lorry. According to him, he occupied the seat near the driver, who is the 3[rd] accused (A3) in this case and the 2[nd] accused (A2) was on his Crl.Appeal No.967/14 -:32:- other side. The victim sat next to A2 and A1 was seated on the other side of the victim. Then A3, the driver started the lorry. Then A1 made certain sexual advances towards the victim and the victim tried to resist the same by making noise. So he requested them to stop the lorry at Kuttupuzha but the accused threatened them that if they raise noise, they will be thrown out from the lorry. He would further say that then the lorry turned towards Peratta from Kuttupuzha and as that road was familiar to him, he again demanded them to stop the lorry. At that time A1 has forcibly closed the mouth of the victim with his hands. He again requested to drop them at Kuttupuzha as they wanted to go through Iritty road but the accused persons have taken the vehicle to Peratta road and he again requested them that they wanted to go to Padiyoor, where they are staying which is at Iritty road. Then the accused told that there is short cut towards Padiyoor through Peratta road but as he had worked somewhere near that place, Peratta road was familiar to him and so he told that it was not possible to go through that road. But the vehicle proceeded further and the lorry was stopped when it reached near a place like a small canal. Then the driver caught hold of CW3 who was standing in the platform of the lorry to the cabin Crl.Appeal No.967/14 -:33:- and they were forced to take some drinks but they refused the same and so it spilled on their dress. At that time, A1 had tried to tear off the dress of the victim and dragged her out of the lorry towards the isolated river side. 17. PW3 further stated that A1 has taken the victim to a place about 40 feet away from the lorry and the other accused persons have confined them in the lorry by holding the broken piece of the bottles. He could hear the cry of the victim from there, but they were helpless. At that time, he heard the sound of a motorcycle and a man came there in the motor cycle and talked with A2 and A3 in their language. He has identified the person who came in the motor cycle as A4. He would further say that A1, who has taken the victim had committed rape on her and he could understand the same by hearing her cries and wailing. According to him, A4, who came in a bike also joined A2 and A3 to confine him and CW3 and after sometime A1 came back and talked with A4 for a while and then A2 went towards the place where the victim was taken by A1, and at that time also he heard the cries of the victim by saying he is also having a mother and sister. After some time, he returned to the lorry and then A3 went towards the victim and at that time also he heard her cries, but Crl.Appeal No.967/14 -:34:- as he was confined along with CW3 by the other accused persons with broken bottle pieces, he could not rush to save her. Thereafter A4, who came in the motorcycle has also gone towards the victim and then also he heard her cries and wailing. Thereafter she was brought to the cabin and she was totally naked and the accused put him and CW3 in the platform of the lorry and the victim in the cabin and drove the lorry. A4 who came in the motorcycle has gone in front of the lorry and thus he happened to see the number of the bike but he could remember only 2 numbers i.e., 5 and 9. PW3 further deposed that the victim was crying at that time also but they could not do anything to save her. The lorry was taken through a cut road to Irikkur road and stopped near a school and they were pushed out. Lorry proceeded further with the victim, they ran behind the lorry to help the victim, but the lorry did not stop and they could not save her. But, he could remember the number of the lorry as 59-8329. He had further deposed that he along with CW3 ran behind the lorry and after some time they reached a small village, and found the victim standing there and they rushed to her and at that time she was naked. Then one Abdulla, a local man (PW20) gave the victim a nightie. The local people gathered there thought that Crl.Appeal No.967/14 -:35:- the victim was attacked by them, since there was smell of alcohol in their dress. So they were beaten up. At that time Abdulla, who is having slight acquaintance with him, as he had worked there, identified him and he interfered and thus they stopped beating them. Because of the language barrier, they could not communicate and disclose to the people about the tragedy they faced. Abdulla told the people who gathered there that they should inform the matter to the police and he called the police and the police came and took them to Iritty police station. He would say that the victim knows only Bengali and when he enquired, she told that her 'honour' was taken by all the accused. He would further say that the police could not understand their language due to the language barrier and on 26[th,] they were taken to Ulikkal Police Station, and after getting the help of an interpreter, he narrated the unfortunate incident to the police and thus Ext.P3 statement was recorded by the police. From the testimony of PW3 also, we find substantial omissions and contradictions. During cross-examination, he denied having given a statement to the Magistrate that after the three persons had come, a bike came. After the bike came, all the persons assaulted him and thereafter all the four were talking. The Crl.Appeal No.967/14 -:36:- contradictions with reference to the previous statement were marked as Exts.D1 to D9. He denied having given a statement that he was working with Denny for the last 1½ years, that the statement was given at the instance of Iritty Circle Inspector and Denny and that when he was questioned by Circle Inspector on 26[th] , he did not say that he was working with Denny. He understood the statement with the help of Denny which also he denied. He denied the statement in FI statement that he was doing coolie work. Yet another omission pointed out from the FI Statement is that by about 7.00 p.m, while all the three came near the checkpost, a lorry came and stopped near them and asked them if they are proceeding to Iritty, they can also get inside and all of them got inside the cabin. According to him, it is not a correct statement and no such statement was given in the FIS. He also denied having given Ext.D7 statement in which it is stated that several vehicles were plying through the road to and fro. He further stated that while they were sitting in the lorry, the accused have closed the mouth of the victim and according to him, he had given such a statement to the police in his complaint as well as to the Magistrate. He also stated that the accused threatened that if they create a hue and cry, they will be pushed Crl.Appeal No.967/14 -:37:- down. According to him, he had given such a statement to the Magistrate. They further asked to be alighted at Koottupuzha and then at Mangulath, but they were not permitted. He asserted that Magistrate had recorded that A1 and A2 had closed the mouth of the victim. He also stated that he had given a statement in his complaint that the victim's dress was torn by the first accused. He was sure that it was recorded in the complaint as well as by the Magistrate. Several other omissions were also pointed out during his cross-examination. During further crossexamination by A4, in Ext.P3 he had stated that the victim was abused and assaulted by the accused inside the lorry. According to him he had given such a statement, but he does not know why it was not recorded. He denied the fact in Ext.P3 that all of them got into the cabin of the lorry. 18. PW5 is also a native of Murshidabad at Kabilpur. He is the father of CW3. The victim is his cousin sister. PW3 is the sister's son of PW5. He stated that he was working as a mason at Iritty and he came to Kerala about two years back before the incident and he was at Kasargod for six months and the rest of the period at Iritty. According to him, in the month of December, 2011, he had gone to his native place and returned from there on Crl.Appeal No.967/14 -:38:- 20.12.2011 and reached here at Kannur on 23.12.2011. He would say that he had met the victim at Howra railway station and she travelled with him to Kannur to meet her lover Ringtu with whom she was in love for last two years before the incident. According to him Ringtu, who was residing at Manathala had asked her to come over to Kerala along with the other workers. Ringtu was residing with him and in total there were eight persons in that house and the victim met him at the house when she reached there. On that night, even though Ringtu wanted to stay with her, he did not allow him and she slept in a separate room. In the next day morning i.e., on 24[th] Ringtu went out saying that he wants to take a cup of tea but did not return. Even though he tried to contact him through mobile phone, his phone was switched off. So the victim called PW3 and sought his help to find out Ringtu and PW3 came there and he took the victim and CW3 along with him in search of Ringtu and when he tried to contact him in the evening, his phone was switched off. Later he got a call from PW3 and he told that four people from Kerala have taken the 'honour' of the victim. He would further say in the cross-examination that even though he tried to contact PW3, he could not contact him and did not get any other information till Crl.Appeal No.967/14 -:39:- 30[th] December. 19. PW19 is one Sasi. He is a resident of Nediyodi. He would say that he is residing near the road side of Iritty-Irikur and his residence is situated just three meters away from the road. He deposed that, on 24[th] December 2011 in the night at about 10.00 or 10.30 p.m after watching T.V., he came out of the house for passing urine, he saw a girl running through the road, totally naked. Immediately, he called his neighbour Abdulla. They followed her and the girl on seeing them stopped running. As mud was found all over her body, it was realized that she was harassed by some miscreants. As she was naked, the wife of one Shaji who rushed there handed over the nightie to her and she wore the nightie and a glass of water was also given to her. He would further say that they could not understand what she was saying. At that time two other Bengali people came running from the opposite side and he thought that they have harassed the girl. But Abdulla had some acquaintance with one of them and he informed the matter to the police and the police came and took all of them to the police station. He would say that actually he could not understand what really transpired, but the girl was naked and was in a panic. Her body was covered with mud and Crl.Appeal No.967/14 -:40:- she tried to hide herself when vehicles were passing through the road. So on seeing the girl, he felt that somebody had harassed her. 20. PW20 is Abdulla, the neighbour of PW19. He is a business man. He would also say that on 24[th] December 2011, in the night at about 10.30, he was called by PW19 and told that a fully naked lady is running through the road and to watch her and so, he immediately came out of his house to the road and found the girl running and she was completely naked. He ran behind her and when they reached near the residence of Shaji, some others also came there and she was found perplexed and disturbed and was saying something which they could not understand. So he asked the wife of Shaji residing close to the road to provide a cloth and water to her. At that time two Bengalies came running and as one of them (PW3) did some construction work for him previously he had slight acquaintance with him. As the girl was naked, PW3 and CW3 were attacked by the local people on the misunderstanding that they have harassed the girl. But he just asked PW3 and realized that they are not the culprits and so he informed the police and the police took them to the police station. Crl.Appeal No.967/14 -:41:- 21. Evidence of PW19 and PW20 clearly proves the fact that on 24/12/2011 at about 10.00 – 10.30 p.m., they saw the victim girl running through Iritty-Irikkur road fully naked. Wife of one Shaji who is a resident there, gave her a nightie and a glass of water and she was taken to police station on the very same day by the police. The girl was perplexed and disturbed and they could not understand what she was saying. People manhandled PW3 and CW3 thinking that they might have harassed the girl. The testimony of these independent witnesses establishes that at the time of the incident, PW3 was with PW4, the victim. 22. PW27 is the Doctor who was attached to Taluk Hospital, Iritty. He deposed that he examined the victim and had issued Ext.P30 discharge summary card on 25.12.2011. She was brought to him with complaints of body pain and abdominal pain by the S.I of Police Iritty. He would say that she was admitted at 1.30 p.m on 25.12.2011 and discharged on the very same day as she has shown some abnormal behaviour. So she was referred to a higher centre for psychiatric consultation. He would say that, he could not communicate with the patient because of her abnormal behaviour. In Ext.P30, the number of patient is recorded as 3094 and according to him, he has prepared the Crl.Appeal No.967/14 -:42:- same in his own handwriting. Exts.P26 to P29 are the potency test reports of the accused prepared by PW27. The learned counsel has filed petitions to forward the discharge card and the other potency certificates issued by the Doctor alleging that the age of handwriting in these documents are different and the discharge card produced by the prosecution was subsequently concocted to fill up the lacuna. The petitions were dismissed by the trial Court and that order was challenged before this Court in Crl.M.C.No.169/2014. This Court also dismissed the petition observing that if there is any doubt, the trial Judge need not place reliance on such document and hence it is not necessary to forward the document for expert opinion. This Court has allowed the petitioner to request to summon the register to get the entries marked by the competent officer of that hospital. Thereafter treatment records were summoned and the same has been produced before the Court and marked through DW2. DW2 is one Dr.Preetha, the Superintendent of District Hospital, Kannur. She is the custodian of the records in the hospital and the document produced was marked as Ext.P61. It is revealed that the victim was admitted in the hospital on 27.12.2011 at 12.42 p.m. From the case sheet it could be seen that the history is Crl.Appeal No.967/14 -:43:- recorded as alleged rape on 24.12.2011 around 10 p.m and she had behaviour problem and she was admitted in the Psychiatry department. In Ext.P61 age of the victim is recorded as 18. 23. PW28 is Dr.Preeja. She is attached to the District Hospital, Kannur. She had issued Ext.P31 medical certificate after examining the victim on 26.12.2011 with history of rape on 24.12.2011. She deposed that the victim was brought to her by women police constable and after obtaining her consent for examination, she examined her and issued the above certificate. She has deposed that she could not collect the history from the girl as she could not understand English, Hindi or Malayalam and so she obtained her consent by gesture. It was revealed that she had no history of previous intercourse. On examination, she found her having abrasion on her left breast and her hymen torn. She was anxious and crying at the time of her examination. It is also deposed by the Doctor that the victim was brought in a wheelchair as she had pain. The injuries noted by PW28 apart from the injury over the left breast was abrasion below left knee joint of 5x6 cm size, abrasion on right knee joint of 3x3cm and multiple small abrasions on right leg. The abrasion over the left breast was having a size of 1x.5 cm. PW28 opined that there was evidence of Crl.Appeal No.967/14 -:44:- sexual intercourse, pending the chemical examination result. The Doctor has also deposed that injuries in the vagina may fade rapidly and swelling and tenderness may disappear within few hours. Detection of spermatozoa will also diminish with delay. 24. PW28 deposed that the victim was subjected to recent sexual intercourse and she had some mental derangement at the time of her examination. The Doctor further deposed that at the time of the examination, the victim was wearing only nightie without under garments. The Doctor has also collected vaginal smear, vaginal swab, pubic hair, nail clips etc. and forwarded for chemical examination. The Doctor has also deposed before the Court that it was her first medico-legal case and the two pages marked as Ext.P31 were written by her and handed over to the Investigating officer and she has recorded it at the very same time but handed over the second page on a different date and in the first page itself in the bottom she had given her opinion as _“may be taken as evidence of sexual intercourse pending chemical examination”_ . Doctor admitted that she could not interact with the victim because of the language problem and the consent of the victim was obtained by her by showing gestures and even though she has asked for an interpreter, she Crl.Appeal No.967/14 -:45:- could not obtain the same and so she asked the victim to affix her signature in the wound certificate in her own language and thereafter examined her and noted down the injuries found on her body and the opinion was formed by her. After her examination, on the very next day the victim was again admitted in the psychiatry department in her hospital and she had given treatment to the victim on the next day also. Ext.P61 case sheet was called for from the hospital and it would show that the victim had some kind of mental disturbance and depression and PW28 also attended her while she was admitted in the hospital. In page No.16 dated 28/12/2011, PW28 has recorded that the abrasion below the left knee joint has a measurement of 5x6cm and round shaped abrasion on left breast was having a measurement of 1x0.5 cm. PW28 has also affixed her signature in treatment record. 25. PW31 during cross-examination stated that Ext.P3 FIS was prepared by questioning PW3 by one Biju Thomas who translated the same. The malayalam version was recorded by a police Constable Govindan on the basis of which he recorded FIR. During cross-examination he stated that PW3 has stated in his FIS that he is working as a coolie near Ulikkal/Iritty and on Crl.Appeal No.967/14 -:46:- 19/12/2011, his wife's sister came in search of her lover Ringtu and they were staying in the house of Akbar Ali. On 24/12/2011, he called her at 10.00 in the morning and told her that since there are lot of persons in the house at Manathala, she cannot stay there. He took her to his place of residence at Perumbady checkpost, Karnataka. He had gone to his employer's house to collect wages. The victim had not told him that on reaching Manathala, they should go in search of Ringtu. PW3 has given a statement that since no other vehicles were available, they asked the lorry to stop and got into the same. PW3 did not say that the victim ran from the checkpost, that the people in the lorry had closed her mouth, that they got into the lorry since they did not get a bus, that he did not say that the lorry came back in reverse to collect them. PW3 did not give a statement that when they tried to abuse the girl, PW3 offered to get down at Kundupuzha that the accused told them that they will be pushed out of the vehicle, if they create a hue and cry. He also stated that PW3 did not give a statement that A1 had closed the mouth of the victim and forcefully gave liquor. PW3 also did not say that A1 had torn the dress of the victim. PW3 did not say in Ext.P3 that the victim was abused inside the lorry and that all the three had got into the Crl.Appeal No.967/14 -:47:- cabin of the lorry. 26. PW32 was the Circle Inspector of Police who undertook investigation. All the omissions and contradictions in the testimony of witnesses were put to him. 27. First question to be considered is with reference to the age of the victim. PW1 is the Head teacher of Kabilpur Primary School and he had proved Ext.P1, the certificate which indicates the date of birth of the victim. He had also produced the original of the register, but, copy of the same is not taken as evidence as the said copy was not furnished to the accused. During further cross-examination, with the permission of Court, he also stated that it is a Government school and he is a Government employee. Under Section 35 of the Evidence Act, the admission register maintained by the Headmaster of a Government school can be treated as evidence, but what is produced before the Court is the certificate based on the said admission register. In fact, the Apex Court in _**Jarnail Singh v. State of Haryana**_ [(2013) 7 SCC 263] and then in _**Mahadeo v. State of Maharashtra**_ [(2013) 14 SCC 637] had occasion to consider the relevancy of extract of school records produced in similar cases and has held that the documents which are required to be produced under the Crl.Appeal No.967/14 -:48:- provisions of Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 can be considered for proving the age of the victim. In fact, under Section 94(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015, the documents required for proving the age of a child/juvenile has been clearly stated which reads as under:- ## _**“94. Presumption and determination of age.**_ _1...._ _2.In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining —_ _i. the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;_ _ii. the birth certificate given by a corporation or a municipal authority or a panchayat;_ _iii. and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:_ _Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.”_ That apart, PW2, the Prathan of Kabilpur Grama Panchayat by producing Ext.P2 has indicated that victim is a permanent Crl.Appeal No.967/14 -:49:- resident of Kabilpur Village and the daughter of Abdul Malen. As far as the age 18 recorded in Ext.P61 is concerned, it does not amount to proof of age of the victim. It is just an age given by somebody while examining the victim. Taking into consideration all these facts, it has to be held that the age of the victim has been proved by the prosecution and she is below the age of 18 and is a minor. 28. The other questions can be considered together. Learned counsel for the appellants argued that the prosecution story should be discarded because, there is no proof of rape. There was no trace of sand on the body of the victim, though the prosecution allege that the incident happened near a river side which is full of sand and rocks. But we do not agree with the said contention. Oral evidence of PW4 and PW3 is categoric that the victim was taken to the river side and she was being exploited by the appellants there. But there is nothing on record to suggest that the said act was committed on the area where sand and rocks were found near the river. Ext.P8 is the scene mahazar prepared by the Investigating Officer on 26/12/2011 at 11.00 A.M. as shown by PW3. It is seen that the place of occurrence is near to the North-eastern portion of the bank of Vayathur river. Near to Crl.Appeal No.967/14 -:50:- it, there is an area where grass is grown and grass over there was seen pressed to the ground recently. Rocks and sand are seen near the river bank, not near the grassy area mentioned above. The hairs found on the churidar top was seen collected in a plastic cover and sealed and along with it, the top of churidar, sweater, and canvas shoes were seized as per Ext.P8 from the spot in the presence of witnesses. All these shows that prosecution could fix the place of occurrence and the contention of the appellants are only liable to be discarded. Also, based on Ext.P15(a) disclosure statement of A1, as per Ext.P15 recovery mahazar, the inner wears of the prosecutrix are recovered from a bushy place near Vayathur river. 29. Main contention urged by the counsel for appellant is that medical evidence does not support rape. Medical evidence can be summarized as under: Ext.P30 is the discharge summary proved by PW27 the Doctor who examined the victim on 25/12/2011 at 01.30 P.M. in which diagnosis column indicates body ache and abdominal pain as complaints. The patient was showing abnormal behaviour and suicidal tendency and she was referred to higher centre for further treatment and psychiatric consultation. Ext.P31 Crl.Appeal No.967/14 -:51:- examination report of the victim was prepared by PW28 on 26/12/2011 at 12.30 p.m. According to PW28, it was her first medico-legal case of this sort. The history noted down in it is rape on 24/12/2011. She noted marks of violence on her body which is already quoted above. She opined that the symptoms may be taken as evidence of sexual intercourse pending chemical examination result. Ext.P61 treatment record cum discharge sheet was proved through her. PW26 Dr.Thankamani stated that on 5/1/2012 at 2.00 p.m. as per the requisition of the CI of Police, Iritty, she had collected the scalp hair of the victim and handed it over to him in the presence of PW11, who has seized the same as per Ext.P13 mahazar. She deposed that the victim had undergone treatment in the Psychiatry Department in the hospital till 6/1/2012 and she was referred to the Medical College Hospital, Kozhikode for better treatment. Treatment records were called for from the Medical College at the instance of the accused but the same was not exhibited and marked. These three medical records clearly show that the victim was admitted to hospital on 25/12/2011 and on 26/12/2011 with the alleged history of rape on 24/12/2011 and her treatment continued thereafter at higher centres. Crl.Appeal No.967/14 -:52:- 30. FSL report corroborates the prosecution case as far as involvement of the lorry which was seized in the incident. Ext.P59 and Ext.P60 are two FSL reports. Item no.2 in Ext.P60 is shown as some black hairs kept in a sealed packet with writings, _“Cr.No.490/11; 04/01/12; P.S: Ulikkal. Sample 1: Hairs collected from front cabin of Lorry.”_ Item No.6 is shown as two black hairs kept in a sealed packet with writings, _“Cr.No.490/11; 04/01/12; P.S: Ulikkal. Sample 6: Hairs collected from backside cabin of Lorry.”_ Item No.9 is shown as some cut fragments of black hairs in a sealed paper box with a label reading _“'X' (the victim), 18 years, Cr.No.490/11, Ulikkal PS.”_ Ext.P60 report shows that the twenty hairs in item no.2(Type I) and the two hairs in item No.6 are human scalp hairs and are similar to the sample scalp hairs in item No.9. That means, the hairs found on the front and backside cabin of the lorry was that of the prosecutrix. This is a clear evidence to indicate that the prosecutrix had travelled in the said lorry. 31. Learned counsel for the appellants challenged the identification of the accused from the stage of TIP itself. They argued that TIP was not conducted properly. Witnesses did not identify the accused properly. They also alleged that the accused Crl.Appeal No.967/14 -:53:- were paraded in such a way that they could be identified easily by the witnesses. This contention is very serious. PW30 is the Judicial First Class Magistrate, Kuthuparamba who conducted the TIP. As far as the formalities are concerned, she gave evidence to the effect that she had complied all formalities and that she had selected 39 non-suspects who are of similar age, height, size and physical features as that of the suspects before commencing TIP. Ext.P32 and Ext.P34 contain in detail the steps taken by the learned Magistrate. Exts.P37, P38, P39 and P40 were marked and Ext.P34(a) is the proceedings. Learned Magistrate submitted that she was authorized by the Chief Judicial Magistrate by an order dated 28/12/2011 to conduct TIP of accused persons involved in Crime No.490 of 2011 by witnesses 1, 2 and the victim. According to her, she conducted it in two different days. Ext.P32 is the report of TIP prepared for witnesses PW3 and CW3. PW30 conducted the TIP of PW3 and CW3 on 06/01/2012 at 02.30 P.M. with the help of an interpreter by name Swarna Choudhary who was working as Lecturer in an International School. According to PW30, PW3 and CW3 identified all the four accused persons in all of their respective three rounds of TIP. Ext.P32(a) is the entire proceeding together with order of CJM and Ext.P32(b) is the Crl.Appeal No.967/14 -:54:- report with respect to TIP of PW3 and CW3. On receiving report from Dr.Prabhavathy, Department of Psychiatry, Medical College Hospital stating that the mental condition of the prosecutrix has improved, PW30 conducted TIP of accused persons by the victim on 10/02/2012 at Central Prison, Kannur. Ext.P34 is the report. She deposed that the victim had clearly identified A1 in the first and second round and appeared frightened to look at the suspects and non suspects in the third round. During the test identification parade of the 2[nd] accused, she refused to look at the faces of persons in the row and she was very much frightened and had not identified A2. Then in the 1[st] round, she has identified the 3[rd] accused and refused to lift her head in the 2[nd] and 3[rd] round and A3 was not identified in the 2[nd] and 3[rd] round. It is also deposed by the learned Magistrate that the victim was frightened to look at the group when the identification parade of A4 was conducted and he was not identified by her. Evidence of PW30 totally falsify the contention of the appellants that the suspects were arrayed with different dress from that of nonsuspects for making the identification easy for the witnesses. We do ignore the baseless allegation raised by the appellants as far as credibility of TIP is concerned. Hence it can be seen at the very Crl.Appeal No.967/14 -:55:- outset that PW3 had identified all the accused at the time of Test Identification Parade and also in Court. PW4 the victim, in her evidence, stated that four persons committed rape on her. She stated it in her own comfortable way which is already quoted above. But she identified only A1 and A3 in both TIP and in Court and did not identify A2 and A4 neither in TIP nor in Court. She stated that she had seen the photo of accused earlier, but the same was corrected during re-examination. She categorically stated that she identified all accused before “Pennu” (which is PW30, the learned Magistrate). Of course, technically she did not identify A2 and A4. However, from the evidence of PW3, it is rather clear that A2 was also present in the lorry and A4 had come in between. 32. From the nature of evidence adduced in the case, we have to consider whether the evidence available in the case discloses a gang rape. In fact there are several omissions and contradictions in the testimony of PW3 and PW4 regarding most vital facts. During evidence, an attempt is made to make embellishments. The fact that PW4 was found naked by local people including PW19 and PW20 on the alleged day of incident at 10.30 P.M. on the road is proved. PW3, PW4 and another Crl.Appeal No.967/14 -:56:- person were offered a lift in the lorry driven by A3 and it is proved that she was taken to the river side. PW4 was heard crying from there. According to PW4, initially A1 and thereafter A2 to A4 went to the place where PW4 was taken and PW3 heard PW4 crying helplessly on each time the accused had gone there. Evidence of PW3 who was present with PW4 at the time of alleged incident corroborates the version of PW4 to that extent. PW3 identified all the accused both at TIP and before Court. Scalp hair of PW4 was traced from the lorry driven by the accused both from the front and back side of the lorry which is a clear indication that she was in the lorry. 33. The Sessions Judge observed that, since the victim was examined by PW28 only on 26.12.2011 that is on the 3[rd] day of the incident, absence of injuries on the private parts of the victim at the time of her examination by PW28 on the 3[rd] day will not be fatal to the prosecution case. Even though PW28 has not reported that the sexual intercourse was recent, she has deposed before the Court that the evidence of sexual intercourse was recent and it was revealed that the victim had no previous history of sexual intercourse and that was recorded in column No.11. It was further held that since the victim was not medically examined Crl.Appeal No.967/14 -:57:- immediately after the incident, the abrasion or contusion or bleeding in her private parts (vagina) might have cured as there is possibility to fade the same by passage of time, as deposed by the Doctor. The court below came to the conclusion that the available medical evidence reveals that she was sexually assaulted and raped and the marks of violence were found on her body. 34. Another allegation is that there are investigation lapses on the part of the agency. Of course, there are some laches in investigation of the case especially in eliciting evidence at the earliest opportunity. The explanation of the prosecution does not make sense. Though victim was not able to communicate anything properly initially, PW3 and CW3 was in the custody of police and it was the duty of the police to elicit information from them at the earliest opportunity. The delay in lodging FIR could of course, be explained. But if police had arranged immediate medical examination of the victim by a Gynaecologist, the fact of rape would have been evident. Such inaction has caused miscarriage of justice to the victim as well as the defence. 35. Learned counsel for the accused submits that this is a case in which there is lack of evidence to prove rape. It is further Crl.Appeal No.967/14 -:58:- submitted that it is quite unbelievable that a girl aged 14 starts from Murshidabad in a train to visit her so-called lover Ringtu. Ringtu is not examined in the case. The purpose of her visit and that that too alone is not in evidence other than the interested testimony of PW5. Even according to PW5, he met the victim at Howara Station while coming back on 20/12/2011 and it is thereafter that the victim travelled along with him to Kannur. The parents of the victim have not been questioned and they have not been examined before Court. During cross-examination, PW3 stated that she had come along with other workers to Howara Station, but he does not know how many where there and from Howara to Kerala, there were 16 workers. He however does not know how she reached Howara. His statement that she had come to meet Ringtu, who was her lover is apparently an omission. Even his evidence indicates that after meeting Ringtu on 23[rd] evening, Ringtu left on 24[th] morning and thereafter they could not contact him. Learned counsel submits that all these raises suspicion regarding the conduct of victim as well as PW5. Further, there is also doubt regarding the circumstances under which PW3, PW4 and CW3 had taken her to the workplace alleged to be that of Ringtu. Even according to PW3, the victim ran away from Crl.Appeal No.967/14 -:59:- the place and they went in search of her. Argument is that from the conduct of PW3 itself, it is evident that they were not speaking the true facts. There is substantial omissions in their statements which amounts to contradiction. That apart, it cannot be believed that a girl aged 14 years did not suffer any injury on her vital parts after having been gang raped. In other words, there is no medical evidence indicating a rape. The injuries noted by the Doctor in Ext.P61 case file cannot be attributed to the accused as the victim does not have a case that she suffered any injury at the hands of the accused. That apart, accused 2 and 4 were not properly identified by the victim. Taking into consideration all these facts, it is argued that PW3 and PW4 cannot be believed and there is no evidence of rape. 36. PW3 in his evidence deposed that the girl was always crying at a distant place while he was being restrained in the lorry itself. He had not seen the incident. Apparently she was being sexually abused. But whether she was being raped cannot be discerned from the evidence of PW3. The victim however says that she was raped. Medical evidence does not indicate any injury on her vagina. If there were injuries on the victim, it would still be there. In fact, PW28 examined the victim only on 26/12/2011. She Crl.Appeal No.967/14 -:60:- had clearly stated that there was no injury on the genital organ of the victim. The hymen was torn and vagina admitted two fingers easily. There was an abrasion on the left breast. There were a few abrasions on the left knee joint, right knee joint and right leg. The vaginal swab and vaginal smear, pubic hair and nail clippings were collected for clinical examination. Her opinion was that “may be taken as evidence of sexual intercourse pending chemical examination result”. She further stated that the victim was admitted in psychiatric ward. During cross-examination, she stated that she did not notice any dry semen on the body of the victim or even any blood particles. She had not seen any swelling, redness or tenderness at the time of her examination. She further stated that in Ext.P31, her certificate, she has not recorded that the hymen was torn fresh. To the question that in a case of a rape on a virgin or a young girl there will be serious injuries on her genital part, her answer was that it was not a must as generally vaginal muscle is flexible. She further stated that she had recorded that there was no previous history of sexual intercourse from the information received from the victim but she had further stated that she could not converse with the victim and got the information by gesture. To her answer as to whether Crl.Appeal No.967/14 -:61:- she had informed the police about recent sexual intercourse, her answer was that she did not remember. Doctor's opinion was that there is evidence of sexual intercourse but it was pending chemical examination. Exts.P59 and P60 are the forensic reports. But there is no evidence forthcoming regarding any chemical analysis report as spoken to by PW28 to support her conclusion that there was sexual intercourse. Therefore, from the evidence adduced by PW28, it may not be possible to finalise the fact that the victim was subjected to a gang rape. That apart, in her evidence she states that after the incident, she started bleeding. But no injury was found by the Doctor who examined her. Of course a few injuries were noticed on her body. The injuries on the body of the victim explains the fact that there was an attempt to sexually assault the victim. The evidence indicates that her dresses were torn. She was taken to a remote place and there was attempt to commit rape. But whether there was actual rape or not is not proved by medical evidence. What remains is the testimony of PW4 alone, who is the victim. 37. Cross-examination of PW4 would indicate that there had been several omissions in her evidence which could be characterized as contradictions. During cross-examination, she Crl.Appeal No.967/14 -:62:- stated that when she did not see Ringtu when she went with PW3 and CW3, she ran away from there and PW3 and CW3 followed her. She became angry and started quarreling with them. That the lorry went forward and came back is an omission. She also stated that she did not tell the police that the persons in the lorry forcefully made her drink some liquid, whereas, according to her, she did not drink the same. Ext.D10 is the contradiction. Further during cross-examination, she stated that on the day of the incident, she had not stated to anyone that she was sexually abused and that she was having bleeding. Yet another contradiction is that the persons in the lorry had misbehaved towards her. She said she had not given any such statement to the police. She admitted that she had not stated to the police that any of the accused had stamped on her or had caressed on her chest. She did not tell the police that she did not drink liquid that was offered. She did not tell the police that she lost her mobile and whether anyone had taken it. She had informed the police that her dresses were torn by A1. According to her, she did not mention that it was the fat person. She did not tell the police that she was asked to lie down. According to her, she had mentioned it to the police, but she does not know why it was not Crl.Appeal No.967/14 -:63:- recorded. She further deposed that she only told the Doctor that she had pain and she never mentioned the same to the police. Yet another contradiction was Ext.D12 wherein she had stated that after the first person had done on her, she ran away. According to her, she did not ask anybody for help. Ext.D12(a) is another contradiction which is marked wherein she has stated that at that time she saw a person and she asked for help to the said person. She denied having given the said statement. She also stated that she had not mentioned to the police that it was a fat person, a person with height etc. She had mentioned the same to a girl. During further cross-examination, she stated that she has no explanation why she had not stated that the driver had abused her. She also stated that the police was with her at the time when the Magistrate recorded her statement. She further stated that police had shown her the photographs of the accused. According to her, she had identified all the accused before the Magistrate. Apparently, there are several contradictions in her evidence and also in the evidence of PW3. The Court below however proceeded on the basis that due to lapse of time, no injuries will be found on the body of the victim and on her private parts. But this is a case in which even PW28 Crl.Appeal No.967/14 -:64:- the Doctor was unable to certify sexual intercourse and she had given such an opinion subject to chemical examination. The chemical examination results are not forthcoming. That apart, the Doctor could not even state that there was sexual intercourse immediately before the victim being examined. Even the police was at dark regarding the alleged rape. Initially neither the victim nor the persons who accompanied her mentioned to the police regarding any rape. The FIS was registered only on 26/12/2011 at 7.30 am, and it is thereafter the victim was taken to the Gynecologist. In fact when the victim was examined by PW27 on 25.12.2011 she did not make any complaint and noticing her mental condition she was referred for better treatment. According to the police, they were unable to communicate with the victim and other persons. But if it was a case of a gang rape, definitely, if not the victim, the persons who accompanied her could have communicated to the police by some method and even the police could have arranged a person to translate their language within a reasonable time. All these facts tends us to set aside the finding of the Court below that a gang rape was proved in the case. 38. In _**Guddu Alias Santosh v. State of M.P.**_ [(2007) 14 SCC 654] the Apex Court had occasion to consider a similar Crl.Appeal No.967/14 -:65:- instance. In the said judgment, the Apex Court referred to the judgment in _**Aman Kumar v. State of Haryana**_ [(2004) 4 SCC 379], as well. Paragraphs 12 to 19 of the judgment in _**Guddu**_ (supra) are relevant which reads as under:- _**“12.** It is not a case where merely a preparation had been undergone by the appellant as contended by the learned counsel. Evidently, the appellant made an attempt to criminally assault the prosecutrix. In fact, from the nature of the medical evidence an inference could also have been drawn by the High Court that there had been penetration. The High Court failed to notice that even slight penetration was sufficient to constitute an offence of rape. The redness of the hymen would not have been possible but for penetration to some extent. In Koppula Venkat Rao, this Court categorically made a distinction between the preparation for commission of an offence and attempt to commit the same, in the following terms: (SCC pp. 605-06, para 9)_ _“Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word ‘attempt’ is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it; and from preparation made for its commission. Mere intention to_ Crl.Appeal No.967/14 -:66:- _commit an offence, not followed by any act, cannot constitute an offence. The will is not to be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India) and Section 399 (preparation to commit dacoity). The dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case.” (emphasis supplied)_ _**13.** In the instant case, the appellant cannot (sic) be said to have intended to commit an indecent assault on the prosecutrix. The fact of the matter clearly demonstrates that his conduct was indicative of his determination to gratify his passion. He would not have been able to do so for one reason or the other, but the same in this established fact situation actual commission or at least attempt to commit the offence cannot (sic) be said to have been made out._ _**14.** In Koppula Venkat Rao case itself this Court having regard to the fact situation obtaining therein that an offence under Sections 376/511 was proved, held: (SCC p. 606, paras 12-13)_ _“12. The sine qua non of the offence of rape is penetration, and not ejaculation. Ejaculation without_ Crl.Appeal No.967/14 -:67:- _penetration constitutes an attempt to commit rape and not actual rape. Definition of ‘rape’ as contained in Section 375 IPC refers to ‘sexual intercourse’ and the Explanation appended to the section provides that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Intercourse means sexual connection. In the instant case that connection has not been established. Courts below were not correct in their view._ _13. When the evidence of the prosecutrix is considered in the proper perspective, it is clear that the commission of actual rape has not been established. However, the evidence is sufficient to prove that attempt to commit rape was made. That being the position, conviction is altered from Section 376 IPC to Sections 376/511 IPC.”_ _**15.** Yet again in Aman Kumar v. State of Haryana it was categorically stated: (SCC p. 386, para 7)_ _“7. Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little.”_ _It was further noticed by this Court: (SCC pp. 386-87, para 7)_ _“The actus reus is complete with penetration. It is well settled that the prosecutrix cannot be considered as accomplice and, therefore, her testimony cannot be equated with that of an accomplice in an offence of rape. In examination of genital organs, state of hymen offers the most reliable clue. While examining the hymen, certain anatomical characteristics should be remembered before assigning any significance to the findings. The_ Crl.Appeal No.967/14 -:68:- _shape and the texture of the hymen is variable. This variation, sometimes permits penetration without injury. This is possible because of the peculiar shape of the orifice or increased elasticity. On the other hand, sometimes the hymen may be more firm, less elastic and gets stretched and lacerated earlier. Thus a relatively less forceful penetration may not give rise to injuries ordinarily possible with a forceful attempt. The anatomical feature with regard to hymen which merits consideration is its anatomical situation. Next to hymen in positive importance, but more than that in frequency, are the injuries on labia majora. These viz. labia majora, are the first to be encountered by the male organ. They are subjected to blunt forceful blows, depending on the vigour and force used by the accused and counteracted by the victim. Further, examination of the female for marks of injuries elsewhere on the body forms a very important piece of evidence. To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under Section 376 IPC.”_ _**16.** As regards the applicability of Section 511 IPC, it was stated: (Aman Kumar case, SCC p. 388, para 11)_ _“11. In order to find an accused guilty of an attempt with intent to commit a rape, court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often_ Crl.Appeal No.967/14 ## -:69:- _magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect.”_ _**17.** In Aman Kumar case having regard to the prosecution case and in particular, the statement of the father of the prosecutrix to the effect that she had merely been teased by the appellant therein, he was convicted under Section 354 IPC._ _**18.** The findings in a criminal case would depend upon the facts and circumstances of each case. However, the ratio laid down in both the judgments relied upon by learned Senior Counsel Mr S.K. Dubey, go against the contention raised by him. There is, therefore, no merit in this appeal. The High Court, however, in our opinion, committed an error in sentencing the appellant to rigorous imprisonment for a term of ten years. The appellant has been convicted only under Sections 376/511 IPC and thus the proper sentence that should have been awarded to him was imprisonment for five years._ _**19.** We, therefore, in modification of the impugned order, reduce the sentence to rigorous imprisonment for five years. The appeal is allowed to the aforesaid extent”._ 39. Taking into account all these facts, we are of the view that the prosecution was unable to prove rape, but the prosecution has established that the accused attempted to commit rape on the victim and has become liable to be punished Crl.Appeal No.967/14 -:70:- for having committed the offence under Section 511 of 376(2)(g) of I.P.C. The accused/appellants are therefore liable to be acquitted for the offence under section 376(2)(g) of I.P.C. 40. The accused had been convicted to undergo rigorous imprisonment for one year for offence u/s 323 of I.P.C. From the nature of injuries suffered by the victim, we do not think it necessary for us to interfere with the said finding. 41. They are also convicted to undergo rigorous imprisonment for one year each for offence u/s 342 r/w S.34 of I.P.C. Evidence of PW3 and PW4 is sufficient to hold that there was wrongful confinement and hence there is no need to interfere with the said punishment. 42. Accused 1 to 3 had been sentenced to undergo rigorous imprisonment for 6 years each and to pay a fine of `25,000/each for the offence u/s 366A r/w S.34 of I.P.C. In order to attract offence u/s 366A of I.P.C., the requirement is that a minor girl under the age of 18 years should be induced to go from any place or to do any act with the intention that such girl may be or that it is likely that she will be forced or seduced to illicit intercourse with another person. In order to attract the above provision, first of all the accused must induce a minor girl under the age of 18 Crl.Appeal No.967/14 -:71:- years and the accused should know that by such inducement the victim will be forced or seduced to an illicit sexual intercourse and the said intercourse should be with another person other than the accused. Apparently, in this case, the accused had offered a lift to the minor girl and a few other persons. They took her to a place without her consent and attempted to commit rape. Of course, the prosecution has a case that accused 1 to 3 had subsequently called the 4[th] accused and he had also committed rape on the victim. But the prosecution was unable to establish the said fact. The identification of fourth accused itself is questionable. The victim did not identify him or rather she deposed before Court that she does not like to look at his face. Therefore, it may not be possible to infer that accused 1 to 3 had induced the girl and procured her for the use of 4[th] accused. It is only a case of wrongful confinement and cannot attract the offence u/s 366A and therefore the accused 1 to 3 are liable to be acquitted for the charge u/s 366A. In the result the appeal is allowed in part. The conviction and sentence of the appellants/accused 1 to 3, under Section 366A and the appellants under Section 376(2)(g) of I.P.C. are set aside. The finding of conviction and sentence of the accused 1 to Crl.Appeal No.967/14 -:72:- 4/appellants under section 323 r/w section 34 of I.P.C. and section 342 r/w section 34 of I.P.C. are upheld. The accused 1 to 4/appellants are found guilty and convicted under section 511 of section 376(2)(g) of I.P.C. All the accused/appellants were suffering sentence since the date of judgment i.e from 28/6/2014. They also suffered pretrial detention from 26/12/2011 and released on bail on 27/4/2012. By this time, they have already undergone imprisonment for 5 years and 4 months, which period of imprisonment shall be treated as sufficient sentence. Since the sentence was directed to run concurrently, the accused shall be released forthwith, if their continuance in prison is not required in any other case. **Sd/-** Rp //True Copy// PS to Judge **A.M.SHAFFIQUE JUDGE Sd/ASHOK MENON JUDGE**