{"id":182560,"date":"2005-01-20T00:00:00","date_gmt":"2005-01-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/joseph-baby-vs-s-i-of-police-on-20-january-2005"},"modified":"2016-05-04T15:41:45","modified_gmt":"2016-05-04T10:11:45","slug":"joseph-baby-vs-s-i-of-police-on-20-january-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/joseph-baby-vs-s-i-of-police-on-20-january-2005","title":{"rendered":"Joseph @ Baby vs S.I. Of Police on 20 January, 2005"},"content":{"rendered":"
Kerala High Court<\/div>\n
Joseph @ Baby vs S.I. Of Police on 20 January, 2005<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL A No. 590 of 2000(B)\n\n\n1. JOSEPH @ BABY\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. S.I. OF POLICE\n                       ...       Respondent\n\n                For Petitioner  :SRI.T.G.RAJENDRAN\n\n^                For Respondent  :PUBLIC PROSECUTOR\n\nCoram\n\n The Hon'ble MR. Justice K.A.ABDUL GAFOOR\n The Hon'ble MR. Justice R.BASANT\n\n Dated :     20\/01\/2005\n\n: O R D E R\n         K.A.  ABDUL GAFOOR &\n         R. BASANT, JJ.\n         - - - - - - - - - - - - - - - - - - - - - - - - - - -\n         Crl.A.Nos.  590, 591, 599, 600, 602, 603, 604\n         605, 606 to 619, 627, 632, 633, 633 and 637 of 2000\n         877 of 2002, Crl.M.C.  Nos.7136 of 2001,\n         3862 of 2002 & 4141 of 2003\n         - - - - - - - - - - - - - - - - - - - - - - - - - -\n         Dated this the 20th day of January, 2005\n         JUDGMENT\n<\/pre>\n
        Abdul Gafoor, J.\n<\/p>\n
        \tThirty  five  accused  persons  were  convicted  in
\n        S.C.No.187 of  1999.    They  have  filed the above appeals
\n        except Crl.A.No.877 of 2002.  Crl.A.No.877 of  2002  is  by
\n        the sole  convicted  accused in S.C.No.241 of 2001.  At the
\n        outset we may mention that the facts relating to  both  the
\n        cases  emanate  out  of  the  same  occurrence  of  alleged
\n        kidnapping, wrongful confining, procuration of a minor girl
\n        and rape and gang rape of the victim, PW3,  in  this  case.
\n        PW3 was  reported  missing  from  16.1.1996.  Initially the
\n        case was registered under the caption `man  missing’  based
\n        on  information  furnished by PW1, the father of the victim
\n        on 16.1.96 itself.  For about 40  days,  in  spite  of  the
\n        investigation conducted  by  PW82,  the  local  Asst.   Sub
\n        Inspector, the whereabouts of the girl could not  be  found
\n        out.   The  girl later appeared in the office of her father
\n        PW1 on 26.2.1996.  Next day she gave a  statement  to  PW82
\n        revealing  information  about  the commission of cognizable
\n        offences  including   kidnapping,   wrongful   confinement,
\n        procuration  of  minor  girl,  rape  and  gang rape on her.
\n        Investigation thereafter proceeded in  that  line  and  the
\n        investigators  came  to  the  conclusion that altogether 45
\n        persons were involved.  Two of them  could  not  be  traced
\n        out.  Out of the remaining 43 persons, one was deleted from
\n        the array of  accused.   Two were absconding.  Charges were
\n        laid against the remaining 40 persons and the case  against
\n        them  was  taken on file by the Sessions Court, Kottayam as
\n        S.C.No.187 of 1999.  During the  trial,  the  40th  accused
\n        died.  Accused Nos.  23, 26, 32 and 36 were acquitted.  The
\n        remaining  35  accused,  convicted  on  different counts of
\n        offences  have  filed  the  appeals  as  mentioned,  except
\n        Crl.A.No.877 of 2002.  During the pendency of these appeals
\n        Accused  No.4,  the  appellant  in  Crl.A.No.607  of  2000,
\n        committed suicide.\n<\/p>\n
        \t2.  After the  trial  of  S.C.No.187  of  1999  was
\n        terminated,   one   among  the  absconding  accused,  viz.,
\n        Dharmarajan, surrendered.  Thereafter  his  case  was  also
\n        committed.   It was tried as S.C.No.241 of 2001 on the same
\n        set of charges.  He was also convicted.    Crl.A.No.877  of
\n        2002 is at his instance.\n<\/p>\n
        \t3.   In  the  first case the convicted accused were
\n        found guilty of all or any one  or  more  of  the  offences
\n        punishable  under  Sections  120-B,  363,  365,  366A, 368,
\n        376(1) and 376(2)(g) I.P.C.  They have  been  sentenced  to
\n        undergo  rigorous  imprisonment  for  terms  ranging from 4
\n        years to 13 years depending on the  offences  found  proved
\n        against them.    Sentence  of  fine  and consequent default
\n        sentences have also been imposed.  Fine, if  realised,  was
\n        directed to  be  paid  to  the  victim.    The appellant in
\n        Crl.A.877  of  2002  was  found  guilty  of  the   offences
\n        punishable  under  Sections  120-B,  365,  363,  366A, 368,
\n        376(2)(g), 372 and 392 I.P.C.  He was sentenced to  undergo
\n        life  imprisonment for the offence punishable under Section
\n        376(2)(g) alone.  So, no separate sentence was  imposed  on
\n        any other count.\n<\/p>\n
        \t4.   The  accused  will  be described as arrayed in
\n        S.C.No.187 of 1999 and the sole accused  in  S.C.No.877  of
\n        2002 will be mentioned by his name Dharmarajan hereafter in
\n        this judgment  for  the sake of convenience.  The exhibits,
\n        witnesses and MOs, unless otherwise specified, are referred
\n        to as in S.C.No.187 of 1999.\n<\/p>\n
        \t5.  The prosecution case is that PW3, as  a  result
\n        of a   conspiracy  hatched  by  accused  Nos.    1,  2  and
\n        Dharmarajan,  was  persuaded,  induced  and  kidnapped   by
\n        accused No.1 from the lawful guardianship of her parents to
\n        go  away  from  the  school hostel in Munnar to join him at
\n        Adimali  and  thereafter  to   go   along   with   him   to
\n        Kothamangalam at about  4.30  P.M..   on 16.1.1996.  Before
\n        reaching there,  he  disappeared.     In   such   perplexed
\n        situation, late  in  the  evening  at  about 7.30 P.M.  PW3
\n        decided to go from Kothamangalam to her  mother’s  sister’s
\n        house at   Kottayam.      She  boarded  a  private  bus  to
\n        Muvattupuzha.  She noticed accused No.2, Usha, in that bus.
\n        Thereafter she alighted at  Muvattupuzha  and  went  in  an
\n        autorickshaw to  K.S.R.T.C.   bus station there, to catch a
\n        bus to Kottayam.  She boarded a Trivandrum  Fast  Passenger
\n        bus  wherein also she noticed the presence of accused No.2.
\n        She got down at Kottayam bus stand.  She was frightened  to
\n        go through  the bylanes to reach her aunt there.  Therefore
\n        she decided to catch a bus to Mundakkayam so as  to  go  to
\n        her uncle’s  house.    But  there was no bus to Mundakkayam
\n        during that night.  It  was  at  that  time,  accused  No.2
\n        approached her  calling her name.  Later she introduced PW3
\n        to one person by name Sreekumar, whom she later realised as
\n        Dharmarajan.   He  promised  to  take  her  to  Mundakayam.
\n        Thereafter Dharmarajan took her to Metro lodge near the bus
\n        stand where, he told her, his mother was staying.  With the
\n        hope  that  she  would  be  taken  to  her uncle’s house at
\n        Mundakayam, she  followed  Dharmarajan.    But  Dharmarajan
\n        raped her during that night in the lodge room.  On the next
\n        day  morning  she was taken to Ernakulam in a transport bus
\n        and thereafter to different  places  like  Kumali,  Kambam,
\n        Palakkad   and  Vanimel  at  Kozhikode,  again  to  Kumali,
\n        Muvattupuzha,  Aluva,   Theni,   Kanyakumari,   Trivandrum,
\n        Kuravilangad,  Kottayam,  again to Kumali, Muvattupuzha and
\n        again to Kottayam, still again to  Theni,  Kumali,  Kambam,
\n        again  to  Kumali, Kottayam and to Muvattupuzha and finally
\n        enfreed her on the morning of 26.2.1996.  In  the  meantime
\n        she   was   presented  to  several  persons  including  the
\n        appellants\/convicted accused, except accused Nos.   2,  17,
\n        38 and  39,  who  committed  rape or gang rape on her.  The
\n        said four persons,  according  to  the  prosecution,  aided
\n        others to  commit  the said offences.  They also wrongfully
\n        confined her.  PW3 had, as admitted by both sides,  crossed
\n        the  age  of  16,  but  had  not  attained 18 years, at the
\n        relevant time.\n<\/p>\n
        \t6.  The evidence in the first case consists of  the
\n        oral testimony of PWs.1 to 97 and Exts.P1 to P182 and MOs.1
\n        to 21 on the side of the prosecution.  The defence evidence
\n        consists of the oral evidence of DWs 1 to 10 and Exts.D1 to
\n        D30.   PWs  1  to  57 were examined and Exts.P1 to 102 were
\n        marked on the side of the prosecution in the  latter  case.
\n        MOs 1  to 21 were also identified.  The defence evidence in
\n        that case consists of the oral testimony of DWs 1 to 6  and
\n        Exts.D1  to D43, apart from the witnesses’ exhibits 1 to 40
\n        and court exhibit C1.    The  court  below  considered  the
\n        evidence  on  record and convicted the accused as mentioned
\n        above.\n<\/p>\n
        \t7.   When  we scanned through the evidence we could
\n        understand that several new materials could be brought  out
\n        by  the  accused to strengthen their defence, in the second
\n        case.  On going through  the  said  evidence  we  are  also
\n        convinced that few of such pieces of evidence could be used
\n        by  the  accused in the first case as well, for the purpose
\n        of their effective defence.  Accordingly,  as  these  cases
\n        arise  out  of the same occurrence, we are of the view that
\n        the evidence in both the cases can be  considered  together
\n        for  the  purpose  of  finding  the  truth  in  this  case.
\n        Whatever available in these cases in favour of the  accused
\n        shall be made use of in their favour, irrespective of where
\n        it was let in, but not vice versa.\n<\/p>\n
        \t8.  It is contended by  the  appellants  that  they
\n        have  been  falsely implicated in the case due to political
\n        enmity.  Few of them are political workers or interested in
\n        politics.  There are others also who are  not  involved  in
\n        politics.  Sufficient materials have not been placed by the
\n        accused to show that they have been thus falsely implicated
\n        with political  motive.   There is nothing to show that any
\n        of the accused was holding any such  position  of  eminence
\n        politically  or  to  justify  an  inference  that they were
\n        implicated falsely on political considerations.\n<\/p>\n
        \t9.  It is  submitted  by  the  appellants  that  no
\n        conspiracy is  proved  in  this  case.   There is no cogent
\n        evidence in that regard.  On the other hand the letter said
\n        to be written by PW3 to DW3 in the second  case  which  has
\n        been  suppressed by the prosecution will cut at the root of
\n        the allegation of conspiracy, it is contended.\n<\/p>\n
        \t10.  The other contention raised is that  there  is
\n        no  reliable  evidence  in  this case to act upon and enter
\n        conviction for serious offences as mentioned  above.    The
\n        only  material and vital evidence available is that of PW3,
\n        who cannot be reckoned  as  a  trustworthy  witness.    Her
\n        evidence  deserves  careful  scrutiny,  because of her past
\n        conduct of squandering the amount given by her parents  for
\n        remitting  hostel  fees  and  even  daring,  admittedly, to
\n        pledge her ornaments on 1.1.1996.   Certain  other  aspects
\n        were   also   brought  to  our  notice  to  elucidate  this
\n        contention.\n<\/p>\n
        \t11.  It is further contended that even  if  PW3  is
\n        found to be believable otherwise, a conjoint reading of her
\n        evidence  in  toto  will show that she was not an unwilling
\n        partner for  intercourse.    So  far  as  the  accused  are
\n        concerned,  there  was no resistance from her part, so that
\n        those who approached her could discern  that  she  was  not
\n        willing  for  intercourse  or  there was absence of consent
\n        from the part of PW3.  Absence of consent on  the  part  of
\n        PW3  has  not  been  satisfactorily  proved in this case to
\n        bring home the guilt of the accused under Section 376(1) or
\n        376(2)(g).  It is further contended that the  unwillingness
\n        now  spoken  to  by PW3 before the court below is really an
\n        excuse found out by her to save her face in the family  and
\n        among  the  relatives  for her long absence of 40 days from
\n        her house.    It  is  further  submitted  that  the  normal
\n        approach  adopted  for  appreciating the evidence of a rape
\n        victim cannot be applied in this case, taking into  account
\n        the incidents  occurred  in  those 40 days.  Therefore, the
\n        court should always seek corroboration for the evidence  of
\n        PW3 before finding the accused guilty of the offences under
\n        Sections 376(1)  or  376(2)(g).  In this regard the counsel
\n        for the appellants have relied on the decisions reported in
\n        Kali Ram v.  State of Himachal  Pradesh<\/a>  (1973  SCC  (Cri.)
\n        1048), Deelip  Singh  @  Dilip Kumar v.  State of Bihar (JT
\n        2004 (9) SC 469), State of Maharashtra v.    Chandraprakash
\n        Kewalchand Jain (AIR<\/a> 1990 SC 658), Sudhansu Sekhar Sahoo v.
\n        State  of  Orissa<\/a> (2003 Crl.LJ 4920), Gopi Shanker and ors.
\n        v.  State of Rajasthan (AIR 1967 Rajasthan 159), Kuldeep K.
\n        Mahato v.  State of Bihar (1998) 6 SCC  420),  Jagannivasan
\n        v.  State of Kerala<\/a> (1995 Supp (3) SCC 204), Jinish Lal Sah
\n        v.   State  of Bihar<\/a> (2003) 1 SCC 605), Vimal Suresh Kamble
\n        v.  Chaluverapinake Apal S.P.  &<\/a> anr.  (2003)  3  SCC  175)
\n        and S.A.  Nanjundeswara  v.  M.S.Varlak Agrotech Pvt.  Ltd.
\n        (AIR<\/a> 2002 SC 477).  The consent is  thus  discernible  from
\n        the conduct  of  PW3;  submit  the appellants’ counsel.  No
\n        rape punishable under Section 376(1) is proved.\n<\/p>\n
        \t12.   It  is  contended  that  even  going  by  the
\n        evidence  of  PW3,  the  offence  punishable  under Section
\n        376(2)(g) has not been made out.  No jointness in action by
\n        several persons alleged to have raped  her  on  any  single
\n        occasion had  been  spoken  to  by her.  In this regard the
\n        decisions reported in Ashok Kumar v.  State of Haryana (AIR
\n        2003 SC 777), Devendra Das and ors.  v.  The State of Bihar
\n        (1999 Crl.LJ 4805), Jai Bhagwan  &  ors.    v.    State  of
\n        Haryana<\/a> (1999)  3  SCC  102), State of Orissa v.  Arjun Das
\n        Agrawal &<\/a> anr.  (1999) 8 SCC 154) and Ashok Kumar v.  State
\n        of Haryana (2003) 2 SCC 143) are relied on.  It is  further
\n        contended  that  apart  from  the  evidence of PW3 the only
\n        other   evidence   introduced   by   the   prosecution   to
\n        substantiate  the  offence  under Section 376(2)(g) is that
\n        coming from the mouth of PW8.  She was really accused No.42
\n        in the first case and was arrested and remanded.   She  was
\n        later  transformed  as  a prosecution witness, in reward of
\n        her giving evidence against the accused.   Such  a  witness
\n        cannot  be  treated  as trustworthy, the appellants submit,
\n        relying on the decision reported in Vemireddy  Satyanarayan
\n        Reddy & ors.    v.  State of Hyderabad (A.I.R.1956 SC<\/a> 379).
\n        Thus there is no evidence to  fasten  guilt  under  Section
\n        376(2)(g), they submit.\n<\/p>\n
        \t13.   It  is  further  contended  that  the  entire
\n        investigation in this case was totally unfair,  suppressing
\n        material   particulars   gathered   in  the  investigation.
\n        Certain material witnesses cited  by  the  prosecution  had
\n        also  been  withheld  and withdrawn without examining them.
\n        Even one among the  investigating  officers  had  not  been
\n        examined in  the  second  case.    He  had to be cited as a
\n        defence witness.  PW3 did allegedly  have  some  connection
\n        with  the  accused in a case relating to the death of a nun
\n        in a convent and she had been questioned  in  that  regard.
\n        The amount given by her father for remitting the hostel fee
\n        was  allegedly  made  use  of  to pay to an accused in that
\n        case.  This ought to have been spoken to by  DW6,  who  was
\n        questioned by  police.    But  she  was  given  up  by  the
\n        prosecution.  It is also submitted based on the evidence of
\n        DW3, Kochumon, in the second case who spoke about a  letter
\n        written  by  PW3  on the day when she disappeared, that the
\n        entire case of  conspiracy  projected  by  the  prosecution
\n        falls down.  Suppression of those relevant materials speaks
\n        a  lot  about  the  unfairness  shown  by the investigating
\n        agency and such unfairness has resulted in prejudice so far
\n        as the accused are concerned.  The  decisions  reported  in
\n        Rampal Pithwa Rahidass  &  ors.    v.  State of Maharashtra<\/a>
\n        (1994 Crl.LJ 2320) and Vemireddey Satyanarayan Reddy & ors.
\n        v.  State of Hyderabad (AIR<\/a> 1956 SC 379) are relied  on  in
\n        this regard.\n<\/p>\n
        \t14.   It  is  further contended that apart from the
\n        unfairness shown in the investigation  and  the  consequent
\n        unfairness   in   the   trial,  the  prosecution  also  had
\n        suppressed the relevant materials  which  the  accused  are
\n        entitled  in  terms  of the Code, thereby disabling them to
\n        mould their defence properly from the initial stage of  the
\n        trial.   It is submitted and is borne out from the evidence
\n        that at least 10 statements, including one disputed by  the
\n        prosecution,   had   been  obtained  from  PW3  by  various
\n        investigating officers in this case.   According  to  PW82,
\n        who  started the investigation in the case when Ext.P1 F.I.
\n        statement was  furnished  and   Ext.P1(a)   F.I.R.      was
\n        registered,  PW3  on her reappearance had given a statement
\n        to him on 27.2.1996, which he had written down in  his  own
\n        hand.   At  the  same  time, it is submitted relying on the
\n        evidence of DW10 that there was yet another statement taken
\n        from PW3 on the same date by PW82 himself.   This  was  not
\n        disclosed to  the  court.   When PW95 had been in charge of
\n        the investigation he had also  recorded  another  statement
\n        dt.28.2.1996 from  PW3.    Apart from these two statements,
\n        three statements had been recorded on 8.3.96,  10.3.96  and
\n        15.3.96  by  PW93,  who conducted the investigation between
\n        27.2.96 and  8.3.96.    Two  statements   were   thereafter
\n        recorded  by  PW91, who continued the investigation and two
\n        more  statements  were  recorded  by  PW97,   who   finally
\n        investigated the  case.  It is submitted that the statement
\n        of PW3 initially recorded by PW82, that recorded by PW95 on
\n        28.2.96 and the three statements recorded by  PW93,  Circle
\n        Inspector,  Devicolam,  were  not  produced before court in
\n        time or furnished to the accused, as enjoined under Section
\n        173(5) and 207(iii)   Cr.P.C.      respectively.      Thus,
\n        suppression of details spoken to by the victim in this case
\n        really  prejudiced  the  accused  in shaping their defence.
\n        Those statements stated to be recorded by PW93  on  8.3.96,
\n        10.3.96  and  15.3.96  and  the  statements  stated  to  be
\n        recorded by PW95 on 28.2.1996  were  produced  at  a  later
\n        stage in  the  first case.  That was far later than PW3 had
\n        spoken to about  the  incident  and  been  cross  examined.
\n        Though  the  prosecution  offered  PW3  again  to  be cross
\n        examined  on  the  basis  of  the  materials  so  belatedly
\n        produced,  it  was  not a real and effective opportunity to
\n        defend the allegations, as PW3 had made up  her  mind  when
\n        she had  been  already  cross examined extensively.  It was
\n        too late for the accused to mould or remould their defence.
\n        Such belated production of documents in court and  offering
\n        PW3  for  further  examination are not sufficient to render
\n        any real opportunity to the accused to mould their  defence
\n        at the  initial  stage.    It is further submitted that the
\n        mere production of these documents  is  not  sufficient  to
\n        satisfy the  requirement  of  Section 207(iii) Cr.P.C.  The
\n        accused have to be furnished with the copies thereof.    It
\n        has not  been  done.  They could not and did not, therefore
\n        avail of the opportunity to cross examine PW3 further.   So
\n        suppression  of  these  materials indicates absence of fair
\n        trial, which prejudiced the  accused  from  moulding  their
\n        defence at  the  initial  stage.  Such prejudice percolated
\n        throughout the trial.  Thus the accused had been  denied  a
\n        fair opportunity to defend themselves, it is submitted.\n<\/p>\n
        \t15.   It  is  their  further  case  that  no  first
\n        information report as could  be  called  so  in  law  under
\n        Section 154 Cr.P.C.    is  available  in this case.  Ext.P1
\n        F.I.  statement did not reveal commission of any cognizable
\n        offence.  A reading of Ext.P1 will disclose that  even  the
\n        complaint  of  PW1,  the father of the victim, was that she
\n        had gone away from the hostel.   `I  do  not  know  why  my
\n        daughter  had run away’ is the specific averment in Ext.P1.
\n        He had no case that she had been kidnapped by  any  one  or
\n        that he had suspected so.  Exts.P1 and P1(a) cannot satisfy
\n        the requirements  of an F.I.  statement in terms of Section
\n        154 Cr.P.C., for commencement of investigation  in  a  case
\n        relating to  cognizable offence.  Cognizable offence, if at
\n        all, was revealed for the first  time  when  PW3  had  been
\n        questioned by  PW82,  the  Assistant S.I.  of Munnar police
\n        station on 27.2.1996.  Her statement  ought  to  have  been
\n        registered as   F.I.R.     In  the  absence  of  that,  the
\n        investigation  conducted  cannot  be  said   to   be   fair
\n        investigation in  this  case.   Absence of an F.I.R., which
\n        can be legally acted upon, vitiates the trial in this case.
\n        In that regard the decisions  in  The  State  of  Assam  v.
\n        Upendra Nath Rajkhowa (1975 Crl.LJ 354), Aru Kumar Banerjee
\n        & anr.   v.    The  State  (AIR 1962 Calcutta 504) and Mani
\n        Mohan Ghose v.  Emperor (AIR 1931 Calcutta 745) are  relied
\n        on.\n<\/p>\n
        \t16.   It  is  also  submitted  that  had the police
\n        followed the right, fair, proper and legal method mentioned
\n        in Section 154 Cr.P.C., the controversy as to which of  the
\n        two statements  dt.    27.2.1996  had  been really recorded
\n        would not have arisen at all.  The  statement  so  recorded
\n        revealing  commission  of cognizable offences ought to have
\n        been,  in  law,  forwarded  to  the  concerned   Magistrate
\n        forthwith  and  there  would  not  have been any dispute on
\n        that.\n<\/p>\n
        \t17.  It is submitted by the learned Special  Public
\n        Prosecutor  in  answer  to  the  above  contentions  of the
\n        appellants that the conspiracy had been proved in this case
\n        by the evidence of PW3, PW66, MO1,  PW59,  though  hostile,
\n        PW60  and  Exts.P115  trip  sheet of the buses in which the
\n        victim girl travelled  from  Munnar  to  Adimali  and  from
\n        Adimali to Kothamangalam produced by PW78 R.T.O.  PW3 moved
\n        from  the  school  campus  to  Adimali  and  thereafter  to
\n        Kothamangalam only  at  the  persuasion  of  accused  No.1.
\n        Intimacy  with  him was revealed by the handing over of MO1
\n        photo album.  That the first  accused  had  a  conversation
\n        with  the  second  accused with respect to the arrival of a
\n        girl was categorically spoken to by PW60,  an  autorickshaw
\n        driver.   In such circumstances the conspiracy in this case
\n        stands proved.  The first accused induced PW3 to  come  out
\n        of  the  school campus and kidnapped her, so that she could
\n        be  placed,  through  accused  No.2,  in   the   hands   of
\n        Dharmarajan, who was waiting, as is revealed by Ext.P57, in
\n        Metro Lodge right from 2.1.1996.\n<\/p>\n
        \t18.   The  Special Public Prosecutor also draws our
\n        attention to the version spoken to  by  PW3  regarding  the
\n        attempt  to  mortgage  her  ornaments  and  spending of the
\n        amount given by her  parents  to  remit  the  hostel  fees.
\n        According to him, PW3 wanted to raise money only to pay the
\n        first accused to avoid him.  MO1 album was taken by accused
\n        No.1 from  PW66  to  give  it  to  PW3.    This reveals his
\n        intimacy with PW3.  Thus involvement of the  first  accused
\n        and  his intimacy with PW3, to kidnap her are manifest from
\n        this evidence.  Non-examination of Kochumon,  DW3,  in  the
\n        second  case, by the prosecution will not be fatal to prove
\n        the conspiracy.  It is also submitted that even though  the
\n        police  did  not  find out the letter said to be written by
\n        PW3 as spoken to by DW3, it will not affect the prosecution
\n        case.  Therefore the conspiracy hatched by accused Nos.  1,
\n        2 and Dharmarajan stands proved.  The further acts  of  the
\n        remaining  accused were in continuation of this conspiracy.
\n        So they have also continued the conspiracy  to  commit  the
\n        offences alleged.    Thus there was real conspiracy in this
\n        case  to  commit  various  offences  charged  against   the
\n        accused.\n<\/p>\n
        \t19.   It is further contended by the Special Public
\n        Prosecutor that there is no reason  to  disbelieve  PW3  at
\n        all.  PW3  is the victim of a sex offence.  Appreciation of
\n        evidence  in  rape  cases  shall  be  different  from   the
\n        appreciation  of  evidence of the victim in any other case.
\n        In this regard he has relied on the decisions  reported  in
\n        State of  Maharashtra  v.    Chandraprakash Kewalchand Jain<\/a>
\n        (1990 SCC (Cri) 210), State of Maharashtra v.  Kalu  Sivram
\n        Jagtap &  ors.<\/a>  (1980 SCC (Cri) 946) and State of Punjab v.
\n        Ramdev Singh (AIR<\/a> 2004 SC 1290).  It is  further  submitted
\n        that  when  the evidence of PW3 is viewed in that angle, it
\n        can be seen that she can be believed.  It is  evident  that
\n        there  was total absence of consent and PW3 was not willing
\n        for intercourse with any  of  the  accused  in  this  case.
\n        Absence  of  consent was, therefore, successfully proved by
\n        the prosecution.\n<\/p>\n
        \t20.  It is further contended that consent is to  be
\n        proved by  the  accused.    In this respect the decision in
\n        State of Himachal Pradesh v.  Shree Kant Shekari (AIR<\/a>  2004
\n        SC 4404) is relied on.  Even if there was consent, it shall
\n        be  further  proved  that  the  consent so expressed by the
\n        victim is one made voluntarily and consciously and based on
\n        reasons after understanding the good and evil of the act to
\n        be done by the person who so consents.  Reliance is  placed
\n        on  the  decision  reported  in  Rao Harnarain Singh Sheoji
\n        Singh & ors.  v.  The state (AIR 1958 Punjab 123) and  Uday
\n        v.  State of Karnataka (AIR<\/a> 2003 SC 1639).\n<\/p>\n
        \t21.   It  is  further contended that any absence of
\n        sign of resistance by the victim shall not be a reason  for
\n        presuming consent.     This  contention  is  urged  placing
\n        reliance on the decision in State of  Himachal  Pradesh  v.
\n        Mange Ram<\/a>  (2000  Crl.LJ 4027).  It is further submitted by
\n        the learned  Public  Prosecutor  placing  reliance  on  the
\n        decision in State  of Maharashtra v.  Prakash &<\/a> anr.  (1992
\n        Crl.LJ 1924) that even in the case of  prostitutes  consent
\n        is an  essential requirement.  Otherwise, it will amount to
\n        rape.  There is no  reason  to  disbelieve  PW3,  when  she
\n        submits  that  the accused had intercourse with her without
\n        her consent, he contends.  He therefore  submits  that  the
\n        fact of rape by several accused as alleged in this case has
\n        been  proved  by  the  evidence of PW3 who speaks about her
\n        express unwillingness and absence of consent.\n<\/p>\n
        \t22.  It is contended that the theory of consent  by
\n        such  a  young  girl  aged less than 17 years is inherently
\n        improbable.  Whey should she consent?  A  girl  could  have
\n        consented  to sexual relationship only out of love, lust or
\n        lure for money.  PW3 had none of  these.    Her  detractors
\n        even admittedly  had  no love for her.  There is nothing to
\n        show that she was prompted by any such uncontrollable  lust
\n        to agree  to  such  intercourses.    Her  parents were both
\n        employed.  She had no reason to crave for money.  In  these
\n        circumstances  she  could not have consented for any of the
\n        three possible reasons.  Her statement  that  she  did  not
\n        consent must, in these circumstances, be accepted, contends
\n        the learned Special Public Prosecutor.\n<\/p>\n
        \t23.   It  is  his  further contention that there is
\n        evidence from PW3 revealing the situations of rape by  more
\n        than  one  person  on a single day at a particular time and
\n        such persons had come together to approach PW3.   Therefore
\n        gang rape punishable under Section 376(2)(g) is also proved
\n        in this  case.  There need not be completed acts of rape by
\n        each and  every  rapist  involved  in  gang  rape.     Some
\n        involvement is sufficient.  The Public Prosecutor relies on
\n        the decisions in  Pramod  Mahto  & ors.  v.  State of Bihar
\n        (1990 SCC (Cri) 206), Justus v.  State of Kerala (1987  (2)
\n        KLT 330),  Moijullah  alias  Puttan  v.  State of Rajasthan
\n        (AIR<\/a> 2004 SC 3186)  and  Bhupinder  Sharma  v.    State  of
\n        Himachal Pradesh   (AIR<\/a>  2003  SC  468).    It  is  further
\n        contended that when PW3 deposed that more persons had raped
\n        her together, the provisions contained in Section 114 A  of
\n        the  Evidence  Act  comes  to play and therefore absence of
\n        consent has to be presumed.  Thus this is a case where gang
\n        rape is conclusively proved.  The decision  in  Bodhisattwa
\n        Gautam v.  Subhra Chakraborthy (Ms)<\/a> (1996 SCC (Cri) 133) is
\n        also relied  on.    Presumption under Section 114A is hence
\n        available, it is contended.\n<\/p>\n
        \t24.  Replying  to  the  contentions  urged  by  the
\n        appellants   with   regard   to   the   unfair   manner  of
\n        trial\/investigation resulting in prejudice, it is submitted
\n        by the Special Public Prosecutor that in the first case all
\n        the statements taken from PW3  by  different  investigating
\n        officers,  except the one disputed by the prosecution, were
\n        produced though later.   The  initial  prejudice,  if  any,
\n        caused  is  thus  wiped  off and the accused had sufficient
\n        opportunity to cross examine PW3 with  reference  to  those
\n        statements.   So  there was no prejudice in the first case.
\n        In the second case also the entire statements,  except  the
\n        disputed  one,  said to be recorded on 27.2.1996, have been
\n        supplied to the accused.  So in that case also there was no
\n        prejudice.  Every accused had opportunity for his full  say
\n        when copies were so produced.\n<\/p>\n
        \t25.   It  is  further  contended  that the disputed
\n        statement said to be written by DW10 in the first  case  is
\n        one  manipulated  to  screen  off  several accused with the
\n        involvement of his superior officer, PW95.  So the admitted
\n        statement of PW3 recorded by PW82 now forming part  of  the
\n        C.D.    records   is   the   real   and   true   statement.
\n        Non-production or non-furnishing of the disputed  statement
\n        dt.   27.2.96  allegedly  recorded  from  PW3 is not one of
\n        relevance as the said statement is not recorded in terms of
\n        Section 161 and is not liable to be produced  in  court  in
\n        terms  of  Section 173(5) or to be furnished to the accused
\n        under Section 207(iii) Cr.P.C.  So there  was  no  occasion
\n        for any prejudice in this case.\n<\/p>\n
        \t26.   It is submitted by the Public Prosecutor that
\n        PW82 had, when  PW1,  father  of  the  girl  furnished  the
\n        information   regarding   the   missing  of  his  daughter,
\n        registered an F.I.R.  Ext.P1(a) and forwarded  it  promptly
\n        to the  Magistrate  court concerned.  That was necessary in
\n        the light of  the  instructions  contained  in  the  Police
\n        Manual.   That  is the long established practice adopted by
\n        the  police  whenever  a  man  missing  case  is  reported.
\n        Depending upon the facts revealed in the investigation, the
\n        case  will  be  moulded  based  on  the  very  same  F.I.R.
\n        Appropriate further reports will be filed before  Court  by
\n        the Investigators.  No fresh F.I.R.  is filed.  That is the
\n        practice followed.  In this case, when PW3 reappeared after
\n        40  days  on  26.2.1996,  her statement was recorded on the
\n        next day, which revealed commission of  certain  cognizable
\n        offences.    It   was   recorded,   in  the  light  of  the
\n        registration of Ext.P1(a) F.I.R.  earlier on the  basis  of
\n        the information furnished by PW1, only as a statement under
\n        Section 161  Cr.P.C.    That  cannot in any way vitiate the
\n        investigation or the trial.    No  prejudice  has  resulted
\n        therefrom.   The  police  was  only  following the practice
\n        hither to followed based  on  the  Police  Manual  and  the
\n        instructions contained therein.\n<\/p>\n
        \t27.   In  the  light  of these rival contentions by
\n        either party we have to examine the evidence in  this  case
\n        and the situations spoken to by PW3 revealing any offence.\n<\/p>\n
        \t28.    As   already  mentioned  above,  the  entire
\n        prosecution case is based on a conspiracy allegedly hatched
\n        by accused Nos.  1, 2 and Dharmarajan some  time  prior  to
\n        16.1.1996  to  kidnap PW3, to move her from place to place,
\n        to confine her and  to  procure  her  for  prostitution  by
\n        others,  to sell or buy her and to commit rape or gang rape
\n        on her.    So  the  conspiracy  is  the  beginning  of  the
\n        occurrence.   Necessarily the conspiracy has to be examined
\n        first.\n<\/p>\n
        \t29.  As already mentioned above, PW3  speaks  about
\n        the intimacy developed by her towards accused No.1, who was
\n        a  Cleaner\/Checker  in  a  bus  in which she used to travel
\n        while attending tuition classes.   According  to  her,  MO1
\n        album  which  she  had  brought  to  show  her friend, PW66
\n        Fathima, came to be in the hands of accused No.1, when PW66
\n        brought it back to return to PW3, who was not available  in
\n        the bus  on  that day.  The first accused took it from PW66
\n        promising to hand it over to PW3 later.  The photographs in
\n        MO1 were threatened to be made use  of  to  blackmail  PW3.
\n        She  was  threatened that unless she accompanied him, those
\n        photographs would be made use of to tarnish her as well  as
\n        her parents.    PW60,  an  autorickshaw driver available in
\n        Adimali bus stand, speaks about  the  conversation  between
\n        accused Nos.    1  and  2 on 16.1.96, about the anticipated
\n        arrival of a girl.   He  had  seen  PW3  arriving,  shortly
\n        thereafter,  in  the  bus  named  “Anjali”  at  Adimali and
\n        accused No.1 accompanying PW3 to the bus stand and  accused
\n        No.2 following  them.  So, the evidence of PW60 reveals the
\n        case of conspiracy.  The timing of the  bus  in  which  PW3
\n        travelled,  had  been  spoken  to  by  PW78 on the basis of
\n        Ext.P115 trip sheet produced by him.  It  is  a  supporting
\n        evidence on  conspiracy  to  corroborate  PW3.  This is the
\n        prosecution case and evidence on conspiracy.\n<\/p>\n
        \t30.  The main trump-card of the defence to  torpedo
\n        this  conspiracy  is the evidence of DW3 and Ext.X13 letter
\n        dt.  14.3.1996  produced  from  the  custody  of  a  police
\n        officer  upon  summons  from the court, in the second case.
\n        DW3 is one Kochumon.  According to him, he was  the  driver
\n        of a  bus  plying  between  Alwaye Sooryanelli.  On 16.1.96
\n        while his bus was on its trip, another one coming from  the
\n        opposite  direction stopped as they were passing each other
\n        and the driver in the said bus one Joy handed over a letter
\n        to him.  He put it in his pocket and later read it when his
\n        day’s work was over at Sooryanelli.  He could realise  that
\n        it  was a letter written by PW3 who had regularly travelled
\n        earlier in his bus.  There was such a friendly relationship
\n        between PW3 and DW3, an employee in a bus.    She  felt  it
\n        necessary to  write  such a letter to DW3.  The contents of
\n        the letter  are  also  almost  spoken  to  by  him  in  his
\n        evidence.   The  contents  do not make reference to accused
\n        No.1, as can be ascertained from the evidence of DW3.\n<\/p>\n
        \t31.  Ext.X13 is an official document written by the
\n        Dy.S.P., Munnar to S.P.  of Idukki with regard  to  certain
\n        reports  in  Crime  No.6 of 1996 giving rise to the present
\n        case.  It reveals that the evidence given by DW3  regarding
\n        the letter written by PW3 is true.\n<\/p>\n
        \t32.   When  there  is  a  letter  contemporaneously
\n        written by PW3 on the day when  she  disappeared  from  the
\n        campus,  it  must  in all probability reveal why she had so
\n        disappeared.   It  must  also  reveal  whether  there   was
\n        involvement of  any  one  including  the first accused.  It
\n        should show whether she was going with the first accused as
\n        induced by him or whether she had been leaving her  parents
\n        of her  own.    It was the suggestion of the accused during
\n        cross examination that PW3, as of her  own,  had  left  her
\n        house, because  of  certain  domestic  reasons.   There was
\n        subsisting quarrel between her parents.   It  is  suggested
\n        that the  home  environment was unsatisfactory.  Father was
\n        an alcoholic and mother was deviant, it was suggested.\n<\/p>\n
        \t33.  In order to cross check the version of DW3, as
\n        he was seen to have been questioned by PW82 as revealed  by
\n        Ext.X13,  we  chose  to  exercise  our powers under Section
\n        172(2) Cr.P.C.  We perused the case diary from the hands of
\n        the Public Prosecutor as to whether the said Kochumon, DW3,
\n        had spoken to the  police  about  the  letter  said  to  be
\n        written by  PW3.  It is also revealed from Ext.X13 that the
\n        police has questioned the driver Joy who  handed  over  the
\n        letter to  DW3,  also.    Ext.X13  also  speaks  about  the
\n        contents of the letter.  We are satisfied that existence of
\n        the letter written by  PW3  was  revealed  by  DW3  to  the
\n        police.\n<\/p>\n
        \t34.   When  there  is such a contemporaneous letter
\n        written by PW3, necessarily it will reveal the  reason  for
\n        her disappearance.    Existence of that letter was known to
\n        the police as revealed by DW3 and Ext.X13.  But none of the
\n        investigating officers has spoken about  the  existence  of
\n        the  letter or their effort or incapability to trace it out
\n        when they gave evidence in the court  below.    The  public
\n        prosecutor was also cross examining DW3, as if there was no
\n        such letter.    Thus the prosecution was really suppressing
\n        that letter, though known to them as revealed by DW3 and in
\n        Ext.X13.  It has to be borne in mind that the investigating
\n        officers did not move their little finger to find out  this
\n        letter  and  to ascertain the reason revealed therefrom for
\n        the disappearance of PW3.  Or else they were withholding it
\n        from court and the accused.  According to DW3 he  entrusted
\n        the letter to the police.  Necessarily the evidence of DW3,
\n        the  contents  of  the letter spoken to by him and Ext.X13,
\n        which refers to that letter do create a  doubt  as  to  the
\n        reason for the disappearance of PW3.  That PW3 had left the
\n        campus as  of  her own cannot be, therefore, ruled out.  In
\n        such circumstances it cannot be  said,  conclusively,  that
\n        PW3  was  kidnapped  consequent  to a conspiracy hatched by
\n        accused Nos.  1, 2 and Dharmarajan.\n<\/p>\n
        \t35.  True, as contended by the  Public  Prosecutor,
\n        there is  evidence  of  PWs.59 and 60.  PW59 turned hostile
\n        completely and nothing beneficial to  the  prosecution  has
\n        come out  from him.  PW60 is an autorickshaw driver who has
\n        spoken about the conversation between accused Nos.  1 and 2
\n        about  the  arrival  of  PW3  on  16.1.1996,  the  date  of
\n        commencement  of  the  series  of occurrences in this case.
\n        That witness was found out and questioned far belatedly  on
\n        23.7.1996 by  PW97.    By  that  time  this case had become
\n        sensational.   PW60  also  did  not   volunteer   to   give
\n        information to  the  police  promptly.  He offers no cogent
\n        explanation for this.  There had  been  five  Investigating
\n        Officers earlier than PW97.  None of them had any knowledge
\n        about the existence of such a witness and no one had reason
\n        to  doubt so obviously because of their knowledge about the
\n        letter written by  PW3,  mentioned  in  Ext.X13.    So  the
\n        belated  questioning  of PW60 and bringing that evidence to
\n        support  conspiracy  do  arouse  suspicion  and  cannot  be
\n        sufficient to  fasten  guilt  for conspiracy.  On the other
\n        hand, the evidence of DW3 in the second case  speaks  about
\n        the  contents  of the letter said to be written by PW3 that
\n        she had gone out of her house as  of  her  own.    In  this
\n        context it will not be inapposite to note that the earliest
\n        versions indicate that PW3 was requested to “go for a trip”
\n        by her  lover and not to elope and get married.  PW1 or PW3
\n        has not been asked anything about the said  letter  by  the
\n        prosecution.   That  course of conduct must certainly cause
\n        suspicion.  The clear indication is that the  investigators
\n        were attempting to black out all indications about the said
\n        letter.\n<\/p>\n
        \t36.   The  evidence  of  a  person  over  hearing a
\n        conversation is too weak an evidence to prove conspiracy as
\n        held by the Supreme Court in  Darshan  Singh  &  ors.    v.
\n        State of  Punjab  (AIR  1983  SC  554).    The  Apex  Court
\n        observed:\n<\/p>\n
         “On the question of conspiracy, the prosecution led
\n                the usual kind of puerile evidence, as for example,
\n                of someone over-hearing something while on  way  to
\n                answering a  call  of  nature.  Here the strain was
\n                changed by alleging that Suran Singh (PW27) heard a
\n                most  damaging  conversation  between  the  accused
\n                while he was negotiating the purchase of a tractor.
\n                Evidence  was  also  produced to show that a wallet
\n                was found at the scene  of  offence,  containing  a
\n                letter  (Ext.P53)  sent  by  one  of the accused to
\n                another  of  them,  discussing   the   threads   of
\n                conspiracy.”\n<\/p>\n
        It is not safe to rely on PW60, as the alleged conspirators
\n        would  not have spoken about their plan so loudly in a busy
\n        bus stand, so that it could be heard by others, so  clearly
\n        as spoken  to by PW60.  So the alleged conversation between
\n        accused Nos.  1 and 2 as perceived by PW60, and kept it  to
\n        himself till PW97 came into the picture belatedly could not
\n        be relied  on  to  prove conspiracy.  That evidence revolts
\n        against commonsense and prudence.\n<\/p>\n
        \t37.  More over, PW60 is  a  witness  found  out  by
\n        PW97, far  belatedly.   On that reason also no reliance can
\n        be safely placed on him.   The  Apex  Court  in  Vijayabhai
\n        Bhanabhai Patel  v.    Navnitbhai  Nathubhai  Patel  & ors.<\/a>
\n        (2004) SCC (Cri) 2032) observed as follows:\n<\/p>\n
         “The delay in questioning these  witnesses  by  the
\n                investigation  officer  is a serious mistake on the
\n                part of the prosecution.  We do not think that  the
\n                High Court erred in disbelieving these witnesses.”\n<\/p>\n
        \t38.   It  has  come  out in the second case that as
\n        PW59, who was also introduced to prove  conspiracy,  turned
\n        hostile  to the prosecution, he had to face harassment from
\n        police and had to move a police  protection  writ  petition
\n        before this  court.    (See  Ext.D24  in  the second case).
\n        These facts relating to the threat to PW59 from  police  as
\n        he  did not support the prosecution case were not available
\n        in the first case  when  the  court  below  considered  the
\n        evidence on   conspiracy.      This  fact  cannot  also  be
\n        neglected.\n<\/p>\n
        \t39.  Added to this is the alleged round about  turn
\n        by  PW60  discussed  in para 25 of the impugned judgment in
\n        the first  case.    After  PW60  had  given   evidence   on
\n        conspiracy  in  the  first  case,  he wrote a letter to the
\n        accused about the circumstances that led him to speak so in
\n        court.  Later he himself filed a petition alleging that  he
\n        was made  to  write  such a letter.  On the face of the new
\n        facts brought in as regards PW59 in the second  case,  this
\n        somersault  by PW60 shakes the credence of his evidence; in
\n        the light of the decision in Darshan Singh referred  supra.
\n        Thus his evidence on conspiracy is not believable.\n<\/p>\n
        \t40.  There is a further fact that PW3, who had left
\n        the  campus  allegedly  upon  the  persuasions from accused
\n        No.1, had never enquired about him after she realised  that
\n        accused No.1 had vanished before she reached Kothamangalam.
\n        This  long  silence  of  PW3  with  respect  to her alleged
\n        partner, accused No.1, is also  relevant  in  this  regard.
\n        The  version  of the victim, in both the cases reveals that
\n        she had never enquired about accused No.1 with any one,  at
\n        all.   This conduct of hers is inconsistent with her theory
\n        that she left the school campus  out  of  love  towards  or
\n        under the  threat  of  the  first  accused.   The theory of
\n        simultaneous threat as also love  both  acting  as  reasons
\n        prompting  PW3 to accompany the first accused is inherently
\n        uninspiring also.\n<\/p>\n
        \t41.  Apart from these there is no  connecting  link
\n        proved between  accused  Nos.1  and 2 and Dharmarajan.  The
\n        presence of accused No.2 in the bus does  not  in  any  way
\n        connect accused  No.1  to  the  alleged  conspiracy.    The
\n        prosecution  has  no  case  of  any  previous  acquaintance
\n        between accused  No.2  and  PW3.  The evidence of PW66 does
\n        not speak about any conspiracy.  She  speaks  about  giving
\n        MO1  album to accused No.1 who undertook to give it to PW3.
\n        This will reveal only acquaintance among the said three who
\n        happened to see in the bus regularly and does not give  any
\n        support to the theory of conspiracy.\n<\/p>\n
        \t42.    The  trip  sheet  of  the  buses,  Ext.P115,
\n        produced by PW78, R.T.O.  speaks about timing of the  buses
\n        in  which PW3 had travelled from Munnar to Kothamangalam on
\n        16.1.96 and nothing else.  In the absence of production  of
\n        the  letter  written  by  PW3  as  is  discernible from the
\n        evidence of DW3 and Ext.X13 in the second case, this travel
\n        can be as of her own in the nature of the contents  of  the
\n        letter spoken to by DW3.\n<\/p>\n
        \t43.  There is also no case for the prosecution that
\n        the  alleged  conspiracy  among  the three persons had been
\n        continued by Dharmarajan with other accused  by  presenting
\n        the  girl  for  rape  and  gang  rape  to  them and also in
\n        confining PW3 in the house of Accused No.38  and  39.    We
\n        have  gone through the evidence again and we could not find
\n        any allegation of meeting of mind of any of  these  persons
\n        except  the  alleged  phone  call made by Dharmarajan or by
\n        accused No.4 to Accused No.10.  Nobody has spoken about the
\n        meeting of  minds  by  these  accused  to  have  a  further
\n        conspiracy  regarding  the commission of rape or gang rape.
\n        The second  part  of  the  conspiracy  is  alleged  as  the
\n        integral part  of  the  initial  conspiracy  itself.    The
\n        prosecution could not prove the initial conspiracy and thus
\n        any continuing conspiracy as well.\n<\/p>\n
        \t44.  It has to be borne in mind that even going  by
\n        the  prosecution case accused No.1 did not have any role at
\n        all after 16.1.96.  The prosecution has no evidence, theory
\n        or even semblance of a suggestion that  the  first  accused
\n        had  any  role  to  play  after  16.1.96 or had enjoyed any
\n        benefit from the alleged agreement to commit crimes.    The
\n        allegations  against the first accused are thus found to be
\n        inherently uninspiring.      About   the   involvement   of
\n        Dharmarajan  in the conspiracy prior to his alleged meeting
\n        PW3 in the Bus stand at  Kottayam,  there  is  no  evidence
\n        worth the  name  except his presence there on 16.1.96.  The
\n        case of the prosecution that  Dharmarajan  was  waiting  at
\n        Metro   lodge  from  2.1.96  anticipating  that  the  other
\n        conspirators would bring PW3 to Kottayam bus stand on  some
\n        day  thereafter  is,  to  say  the  least,  improbable  and
\n        uninspiring.  Thus these facts are sufficient  to  conclude
\n        that  the  prosecution  has failed to prove the conspiracy,
\n        including its commencement from the alleged  kidnapping  of
\n        PW3.  The prosecution has not thus succeeded in proving the
\n        case  of  conspiracy  alleged  against  any  of the accused
\n        beyond reasonable doubt.  Thus the conviction under Section
\n        120-B has to be reversed.\n<\/p>\n
        \t45.  Next we will consider the case of  kidnapping.
\n        It  is  the  case of the prosecution that the first accused
\n        had kidnapped PW3  so  that  he  could  hand  her  over  to
\n        Dharmarajan and  other  accused.    While  considering  the
\n        conspiracy alleged by the  prosecution  we  referred  to  a
\n        letter  written  by PW3 as spoken to by DW3 and as referred
\n        to in Ext.X13 in the second case.  We have also come to the
\n        finding that that letter would reveal the  reason  for  her
\n        disappearance.   The contents is spoken to by DW3 that, she
\n        was going on her own from the family.  Though the letter is
\n        known to the police,  they  did  not  reveal  it.    If  it
\n        contained  the  version  that  she  had  gone  on  her own,
\n        allegation of kidnapping of PW3 from lawful custody of  her
\n        parents cannot be sustained.  The letter thus also takes us
\n        a long way to disprove the case of kidnapping.  That letter
\n        cannot any more be disputed by the prosecution in the light
\n        of Ext.X13  in  the  second  case.   Non production of this
\n        letter, the existence and contents of which are  proved  by
\n        DW3  and  Ext.X13,  creates  a  doubt against the theory of
\n        kidnapping alleged by the prosecution.  From  S.Varadarajan
\n        v.  State of Madras (AIR<\/a> 1965 SC 942) it is clear that if a
\n        minor  girl  leaves her parents on her own, the persons who
\n        subsequently come across the minor cannot  be  held  to  be
\n        guilty  of “taking or enticing” the minor out of the lawful
\n        keeping of its guardian.  Non production of the letter  and
\n        suppression   of  the  same  must  in  these  circumstances
\n        certainly entitle the accused to the benefit  of  doubt  on
\n        this crucial  aspect.   So the conviction under Section 363
\n        IPC shall also have to be reversed, giving the  benefit  of
\n        doubt to the accused.\n<\/p>\n
        \t46.   We  will  now  consider  the  other  offences
\n        related to kidnapping viz., those punishable under Sections
\n        365 and 368 I.P.C.  No kidnapping is proved  satisfactorily
\n        and beyond  doubt  as found above.  So there arises no case
\n        of confining a kidnapped minor nor concealing such a person
\n        revealing offences punishable under Sections  365  and  368
\n        I.P.C.   Consequently  the conviction under Section 365 and
\n        368 shall also have to be  vacated.    Under  Section  368,
\n        accused  No.38  and  39  alone had been convicted and their
\n        conviction is on those counts alone.\n<\/p>\n
        \t47.  Next we will have to  deal  with  the  alleged
\n        rape.  The  evidence regarding rape is spoken to by PW3.  A
\n        reading of the evidence of PW3  will  categorically  reveal
\n        that   there   had   been   several   occasions  of  sexual
\n        intercourses with her by several of the accused during  the
\n        40  days  period  from  16.1.1996  to  25.2.1996, except by
\n        accused Nos.  1, 2, 17, 38 and 39.  The  Public  Prosecutor
\n        is justified in submitting that appreciation of evidence of
\n        a  victim  in  a  rape case shall be on a different footing
\n        from the evidence of any other  injured  witness  in  other
\n        criminal cases.  The evidence of the rape victim shall have
\n        to  be given due weight as held by the Supreme Court in the
\n        decision in  State  of  Maharashtra  v.      Chandraprakash
\n        Kewalchand Jain<\/a> (1990 SCC (Cri) 210) and Rafiq v.  State of
\n        U.P<\/a> (1980 SCC (Cri) 947).  In the former it was held that:\n<\/p>\n
         \t“The prosecutrix of a sex offence cannot be
\n                put on  par  with  an accomplice.  She is in fact a
\n                victim of the crime.  The Evidence Act nowhere says
\n                that her evidence cannot be accepted unless  it  is
\n                corroborated in   material  particulars.    She  is
\n                undoubtedly a competent witness under  Section  118
\n                and her evidence must receive the same weight as is
\n                attached   to  an  injured  in  cases  of  physical
\n                violence.  The same degree of care and caution must
\n                attach in the evaluation of her evidence as in  the
\n                case  of  an  injured complainant or witness and no
\n                more.  What is necessary is that the court must  be
\n                alive  to  and  conscious  of  the  fact that it is
\n                dealing with  the  evidence  of  a  person  who  is
\n                interested in the outcome of the charge levelled by
\n                her.   If  the  court  keeps this in mind and feels
\n                satisfied that it can act on the  evidence  of  the
\n                prosecutrix,  there  is  no rule of law or practice
\n                incorporated  in  the  Evidence  Act   similar   to
\n                illustration  (b)  to Section 114 which requires it
\n                to look for corroboration.  If for some reason  the
\n                court is hesitant to place implicit reliance on the
\n                testimony  of  the  prosecutrix  it  may  look  for
\n                evidence which may lend assurance to her  testimony
\n                short  of  corroboration required in the case of an
\n                accomplice.  The nature  of  evidence  required  to
\n                lend  assurance to the testimony of the prosecutrix
\n                must  necessarily   depend   on   the   facts   and
\n                circumstances of  each  case.  But if a prosecutrix
\n                is an adult and of full understanding the court  is
\n                entitled  to  base  a  conviction  on  her evidence
\n                unless the same is  shown  to  be  infirm  and  not
\n                trustworthy.   If the totality of the circumstances
\n                appearing on the record of the case  disclose  that
\n                the  prosecutrix  does  not have a strong motive to
\n                falsely  involve  the  person  charged,  the  court
\n                should  ordinarily  have no hesitation in accepting
\n                her evidence.  We have, therefore, no doubt in  our
\n                minds that ordinarily the evidence of a prosecutrix
\n                who  does  not lack understanding must be accepted.
\n                The degree of proof required  must  not  be  higher
\n                than is  expected  of  an injured witness.  For the
\n                above reasons we think that exception  has  rightly
\n                been  taken to the approach of the High Court as is
\n                reflected in the following passage:\n<\/p>\n
          “It is only in the rarest of rare cases  if
\n                        the  court  finds that the testimony of the
\n                        prosecutrix is so trustworthy, truthful and
\n                        reliable that other corroboration  may  not
\n                        be necessary.\n<\/p>\n
         With respect,  the law is not correctly stated.  If
\n                we may say so, it is just the reverse.   Ordinarily
\n                the  evidence  of a prosecutrix must carry the same
\n                weight as is attached to an injured person who is a
\n                victim  of  violence,  unless  there  are   special
\n                circumstances  which  call  for greater caution, in
\n                which case it would be safe to act on her testimony
\n                if there is independent evidence lending  assurance
\n                to her accusation.”\n<\/p>\n
        In the latter one, it was observed by the Apex Court that:\n<\/p>\n
         \t“Hardly  a  sensitized  judge  who sees the
\n                conspectus of circumstances  in  its  totality  and
\n                rejects the testimony of a rape victim unless there
\n                are  very  strong  circumstances militating against
\n                its veracity.”\n<\/p>\n
        \t48.  The Public Prosecutor has also relied  on  the
\n        recent  decision  of the Supreme Court reported in State of
\n        Himachal Pradesh v.  Shree Kant Shekari (AIR<\/a> 2004 SC 4404),
\n        wherein it was held that:\n<\/p>\n
         \t“It is  well  settled  that  a  prosecutrix
\n                complaining  of having been a victim of the offence
\n                of rape is  not  an  accomplice  after  the  crime.
\n                There  is  no rule of law that her testimony cannot
\n                be  acted   without   corroboration   in   material
\n                particulars.   She stands at a higher pedestal than
\n                an injured witness.  In the latter case,  there  is
\n                injury on the physical form, while in the former it
\n                is physical as well as psychological and emotional.
\n        But  even  in  that  decision,  the  Apex Court has made it
\n        explicitly clear that:\n<\/p>\n
         However, if the Court on facts finds  it  difficult
\n                to  accept  the  version  of the prosecutrix on its
\n                face value, it may search for evidence,  direct  or
\n                circumstantial,  which  would lend assurance to her
\n                testimony.  Assurance, short  of  corroboration  as
\n                understood  in  the  context of an accomplice would
\n                suffice.”\n<\/p>\n
        \t49.  In State  of  Maharashtra  v.    Chandrapakash
\n        Kewalchand Jain (AIR 1990 SC 658) also the Apex Court ruled
\n        in the same lines that:\n<\/p>\n
         \t“We  think  it proper, having regard to the
\n                increase in the number of  sex-violation  cases  in
\n                the  recent past, particularly cases of molestation
\n                and rape in custody, to remove the  notion,  if  it
\n                persists,  that  the  testimony of a woman who is a
\n                victim  of  sexual  violence  must  ordinarily   be
\n                corroborated  in material particulars except in the
\n                `rarest of rare cases’.  To insist on corroboration
\n                except in the rarest of rare cases is to  equate  a
\n                woman  who  is a victim of the lust of another with
\n                an  accomplice  to  a  crime  and  thereby   insult
\n                womanhood”\n<\/p>\n
        indicating  that,  there  can be rarest of rare cases where
\n        corroboration shall  be  insisted.    We  do  agree  –  not
\n        corroboration,    not   even   assurance,   but   certainly
\n        satisfaction of the judicial conscience must be insisted.\n<\/p>\n
        \t50.  Reversing conviction by Sessions Court and its
\n        confirmation in appeal by the High Court, the Apex Court in
\n        Surjan & anr.  v.  State of M.P.  (AIR 2002  SC  476)  held
\n        that:\n<\/p>\n
         “In  a  case  where six indicated persons should be
\n                visited with a minimum sentence of  10  years’  RI,
\n                the   Court   cannot   afford   to   act   on   the
\n                uncorroborated testimony of the prosecutrix  unless
\n                the said  evidence is wholly reliable.  When looked
\n                at the testimony of  PW1  from  all  the  different
\n                angles  highlighted  above,  we  are unable to hold
\n                that her testimony is wholly reliable.  In  such  a
\n                situation,    materials   for   corroborating   the
\n                testimony of  PW1  could  not  be  obviated.    But
\n                unfortunately there is none.”\n<\/p>\n
        Therefore  the  legal  position  is as held in Vimal Suresh
\n        Kamble v.  Chaluverapinakeapal S.P.  & anr.  {(2003) 3  SCC
\n        175} that:\n<\/p>\n
         “It  is no doubt true that in law the conviction of
\n                an accused on the basis of  the  testimony  of  the
\n                prosecutrix  alone is permissible, but that is in a
\n                case where the evidence of the prosecutrix inspires
\n                confidence and appears to be natural and truthful.
\n        Because as held by the Apex Court in Sudhansu Sekhar  Sahoo
\n        v.  State of Orissa<\/a> (2003 Crl.LJ 4920),<\/p>\n
         “It  is  also  reasonable  to  assume that no woman
\n                would falsely implicate a person in sexual  offence
\n                as the honour and prestige of that woman also would
\n                be at   stake.     However,  the  evidence  of  the
\n                prosecution shall be cogent and convincing  and  if
\n                there  is  any  supporting  material  likely  to be
\n                available, then the rule of prudence requires  that
\n                evidence  of  the  victim  may be supported by such
\n                corroborative material.”\n<\/p>\n
        \t51.  In yet another  recent  decision  reported  in
\n        State of  Punjab  v.   Ramdev Singh (AIR<\/a> 2004 SC 1290), the
\n        Supreme Court again reiterated that:\n<\/p>\n
         \t“It is  well  settled  that  a  prosecutrix
\n                complaining  of having been a victim of the offence
\n                of rape is  not  an  accomplice  after  the  crime.
\n                There  is  no rule of law that her testimony cannot
\n                be  acted   without   corroboration   in   material
\n                particulars.   She stands at a higher pedestal than
\n                an injured witness.  In the latter case,  there  is
\n                injury on the physical form, while in the former it
\n                is  both  physical  as  well  as  psychological and
\n                emotional.  However, if the Court of facts finds it
\n                difficult to accept the version of the  prosecutrix
\n                on  its  face  value,  it  may search for evidence,
\n                direct  or   circumstantial,   which   would   lend
\n                assurance to  her  testimony.   Assurance, short of
\n                corroboration as understood in the  context  of  an
\n                accomplice would do.”\n<\/p>\n
        \t52.   At the same time the defence has a contention
\n        that appreciation of evidence of PW3 in this case,  who  is
\n        said  to have withstood the alleged atrocities committed on
\n        her for a long period of 40 days shall have to be viewed in
\n        a different angle rather than in an ordinary rape case or a
\n        rape for one or two days.  As held in  Rafiq’s  case  cited
\n        supra:\n<\/p>\n
         ”\tWe do  not  agree.    For one thing, Pratap
\n                Misra case laid down no inflexible axiom of law  on
\n                either point.    The  facts and circumstances often
\n                vary from case to case, the crime situation and the
\n                myriad  psychic  factors,  social  conditions   and
\n                people’s life-style may fluctuate, and so, rules of
\n                prudence  relevant  in  one  fact-situation  may be
\n                inept in another.  We cannot  accept  the  argument
\n                that  regardless of the specific circumstances of a
\n                crime  and  criminal  milieu,   some   strands   of
\n                probative  reasoning  which  appealed to a Bench in
\n                one reported decision must mechanically be extended
\n                to other cases.  Corroboration as a  condition  for
\n                judicial reliance on the testimony of a prosecutrix
\n                is  not a matter of law, but a guidance of prudence
\n                under given circumstances.  Indeed, from  place  to
\n                place, from age to age, from varying life-style and
\n                behavioural  complexes, inferences from a given set
\n                of facts, oral and circumstantial, may have  to  be
\n                drawn   not  with  dead  uniformity  but  realistic
\n                diversity lest rigidity in the shape of rule of law
\n                in this area be introduced through a  new  type  of
\n                precedential tyranny.    The same observation holds
\n                good regarding the presence or absence of  injuries
\n                on the person of the aggressor or the agressed.”\n<\/p>\n
        \t53.   Even  in  C.K.Jain (supra) it was pointed out
\n        that:\n<\/p>\n
         “We think it proper, having regard to the  increase
\n                in  the number of sex violation cases in the recent
\n                past, particularly cases of molestation and rape in
\n                custody, to remove the notion, if it persists, that
\n                the testimony of a woman who is a victim of  sexual
\n                violence   must   ordinarily   be  corroborated  in
\n                material particulars except in the rarest  of  rare
\n                material  particulars  except in the rarest of rare
\n                cases.”\n<\/p>\n
        Thus there  can  always  be  rarest  of  rare  cases  where
\n        corroboration is  required.    Based  on  the facts in this
\n        case, is it one of that sort?  If  the  answer  is  in  the
\n        affirmative,  the evidence of the victim in this case shall
\n        be viewed in the same angle as an injured  witness  who  is
\n        always interested  in  the  outcome  of  the case.  In such
\n        circumstances the court shall always have to seek materials
\n        to offer satisfaction to the judicial  conscience,  if  not
\n        corroboration or  even  assurance.    The materials must be
\n        such as to induce satisfaction in the judicial  mind.    Or
\n        else  the evidence should have been one which shall inspire
\n        implicit confidence in the mind of the  court.    In  other
\n        words, as held in Vimal Suresh Kamble’s case (supra) if,<\/p>\n
         “The  evidence  of  the prosecutrix in this case is
\n                not of such quality, and there is no other evidence
\n                on record which may even lend some assurance, short
\n                of corroboration that  she  is  making  a  truthful
\n                statement”,
\n        it is of no use to fasten conviction.\n<\/p>\n
        \t54.   We are unable to persuade ourselves to accept
\n        the argument that in all cases the rigid rule of acceptance
\n        of the evidence of prosecution is to apply.  Precedents can
\n        only  guide  and  assist  the  courts  in  the  matter   of
\n        appreciation  of  evidence  –  whether  of a rape victim or
\n        other victims or witnesses.  It is the prudence  and  sound
\n        judgment of the court, its assessment of circumstances, its
\n        knowledge   of   men   and   matters,   its  assessment  of
\n        probabilities, its knowledge of the common course of events
\n        and behaviour and conduct of individuals  and  its  trained
\n        intuitions which should help it to resolve subtle questions
\n        of appreciation  of  evidence.    An  emotional approach or
\n        insistence that the evidence of all rape victims have to be
\n        accepted is not warranted or permitted  by  law  and  would
\n        result in negation of justice.\n<\/p>\n
        \t55.   The  Investigating Officers have attempted to
\n        secure evidence to corroborate the evidence  of  PW3  about
\n        her  movements  and  residence  at  various  places between
\n        16.1.96 and 26.2.96.  Evidence of PW3 on those aspects have
\n        been substantially corroborated.  But  the  million  dollar
\n        question  in  this  case  is  not whether PW3 had stayed at
\n        these places and whether the indictees had intercourse with
\n        her.   The  question  is  whether  such  intercourses  were
\n        without her  consent  to  be  called  rapes.  It is on that
\n        subtle, finer and sublime aspect that the evidence deserves
\n        to be scrutinised with care.  Is PW3 after returning to the
\n        fold of her parents on 26.2.96 attempting to wish away  all
\n        consensual  sexual intercourses between 16.1.96 and 26.2.96
\n        by calling them rapes without her consent?  Is  she  trying
\n        to  paint  herself  white and attempting to place the blame
\n        for her unfortunate predicament on  the  shoulders  of  all
\n        with  whom  she had sexual intercourse by making convenient
\n        omnibus assertions that they were all  rapes?    We  cannot
\n        assume  that  the  consent  is no consent because PW3 was a
\n        young girl who had just crossed 16 years.   Under  law  she
\n        had reached  that  age of consent.  Why did she consent and
\n        was it prudent on her part to consent are not certainly the
\n        questions before Court.  Did she consent – whether for  the
\n        proper reasons  or  the  improper  ones?    Is such consent
\n        vitiated on any grounds recognised by law?  These  are  the
\n        questions to be considered.  Her young age by itself cannot
\n        be  legally  accepted  as  a  sufficient  reason to vitiate
\n        consent, because she was admittedly above  the  age  of  16
\n        years at  the  relevant  time.   These questions have to be
\n        considered cognisant of the law relating to burden of proof
\n        and benefit of doubt wherever applicable.  The yardstick of
\n        the ordinarily prudent person  in  the  polity  has  to  be
\n        adopted by the court.\n<\/p>\n
        \t56.   When  we read the evidence of PW3, we have to
\n        be cognisant of her psyche – her mental make up.  Her  past
\n        conduct and  behaviour  have  to be borne in mind.  She was
\n        only a  student  of  9th  standard.    She  had  squandered
\n        Rs.450\/-  entrusted  to  her  by  her  father for remitting
\n        hostel fees, whether it was given to Arun as stated by  the
\n        appellants  or  to  the  first  accused  as  stated  by the
\n        Prosecutor.  That piece of  conduct  is  admitted  by  her.
\n        Though there  is no such statement earlier in the C.D.  she
\n        now explains it away saying that she had paid the amount to
\n        the first accused.  A school girl will always be obliged to
\n        account when hostel fee is not remitted.    She  must  have
\n        known that  she  will  have to account.  Her conduct showed
\n        that she was still unmindful of it.  She  was  prepared  to
\n        take that  risk.    Added  to  this is, as suggested by the
\n        counsel for the appellants, that she  was  even  courageous
\n        enough  to  approach a jeweller for pledging an ornament of
\n        hers which her parents  had  given  her  to  wear,  meaning
\n        thereby  that  she  had  that much capability or courage of
\n        even withstanding a question by her parents as to the  loss
\n        of such  ornament.    She admitted during evidence that she
\n        had done so.  So this gives indications about  the  conduct
\n        and mental  make up of PW3.  She is shown to be one who was
\n        prepared to take such risks.  She  was  mentally  ready  to
\n        take that risk  for  raising money.  She needed money.  She
\n        was prepared to raise it.  She had needs which her  parents
\n        did not  know.    She  was  prepared  mentally to advance a
\n        different false version to justify herself.   The  jeweller
\n        was a kind  soul.   He became suspicious.  She gave a false
\n        identity to him.  He verified her books.  He  realised  her
\n        ploy.  He  informed PW1.  She is thus shown to be a girl of
\n        deviant character.  She was not a normal innocent  girl  of
\n        that age.   She was a different person.  The peculiarity in
\n        her personality must realistically be borne in mind.    The
\n        evidence  of  a  person  of  her  age  with  such a conduct
\n        certainly has to be viewed seriously and with caution.    A
\n        court cannot  meekly  swallow  her  version.    It requires
\n        serious critical assessment.\n<\/p>\n
        \t57.  It is  also  brought  to  our  notice  that  a
\n        question  was  asked during cross examination as to whether
\n        she  was  interrogated  by  the  Investigating  Officer  in
\n        “Abhaya case”.    Abhaya  case  is a notorious one known to
\n        every one in Kerala.  Her  answer  was  that  she  did  not
\n        remember whether  she was questioned in that case.  This is
\n        an evading answer.  No one could have forgotten that if she
\n        were really questioned in such a  case.    This  shows  her
\n        attitude.   Her capability not to reveal to others what she
\n        does not feel  inclined  to.    The  aspect  by  itself  is
\n        irrelevant.   But  the attitude is certainly relevant while
\n        appreciating the evidence.\n<\/p>\n
        \t58.   Referring  to  her  evidence  in  court,  the
\n        non-identification of accused No.23, a Professor, by her is
\n        also highlighted by the appellants.  Even according to her,
\n        accused  No.8  and  23  raped her while in Samudra Hotel in
\n        Kanyakumari on  2.2.1996.    Next  day  she  was  taken  to
\n        Thiruvananthapuram in  a  car.    This  Professor,  accused
\n        No.23, was also in  the  car  while  on  the  journey  from
\n        Kanyakumari to Thiruvananthapuram.  Thus he was with her on
\n        2.2.96 and  3.2.96 for quite a long time.  In spite of that
\n        she did not identify him in court, though she says that she
\n        had noticed him, specifically, as  a  man  aged  50  to  55
\n        years,   among  the  persons  who  came  to  her  while  in
\n        Kanyakumari.  PW97, the  final  Investigating  Officer  has
\n        admitted  that,  accused  No.23  was the Professor while he
\n        studied in College.  It  is  thus  suggested  that  she  is
\n        prepared to implicate any one or avoid another, even at the
\n        instance of  the of the Investigating Officer.  Though this
\n        contention as  such  has  no  bearing  on  this  case,  her
\n        inability  to  identify  the professor who was with her for
\n        two days including in a journey and whom she had noticed as
\n        the aged among the lot, is something to be  kept  in  mind,
\n        while appreciating  her  evidence.    We repeat careful and
\n        cautious assessment, not naive acceptance is the imperative
\n        necessity.\n<\/p>\n
        \t59.  It was suggested by the defence  inviting  our
\n        attention  to  the  evidence  of  PW3 that she was speaking
\n        untrue version  about  her  leaving  Mount  Carmel  School,
\n        Kottayam  while  in standard VIII to join the Little Flower
\n        Girls High  School  at  Nallathanni.    According  to   the
\n        appellants  it was because of her expulsion from the former
\n        school due to bad conduct that she could not carry  on  her
\n        studies for  an  year there.  That was why she had gone for
\n        tuition under PW55.  But her version is that she  had  been
\n        in   the   habit  of  bed  wetting  and  therefore  had  to
\n        discontinue the studies in the Mount Carmel School  as  she
\n        lost  the  help of her elder sister, who left the school on
\n        completion of her study, for cleaning the urine soaked  bed
\n        linen.   But  her  evidence further shows that she attained
\n        puberty at  the  age  of  10  1\/2  years,  obviously  while
\n        studying in 5th or 6th standard.  It is pointed out that it
\n        is too unbelievable that such a girl studying in Standard 8
\n        then  could  not  clean  by  herself,  her urine soaked bed
\n        wetted night linen.  That means she is always  seeking  for
\n        some or  other excuse for her acts, one way or other.  Even
\n        though we do not attribute any importance by itself to  the
\n        change  of  school, the attitude of PW3 is revealed by this
\n        also.\n<\/p>\n
        \t60.  It is also revealed from the evidence of  PW1,
\n        the  father  of  PW3,  that even though PW3 was in a hostel
\n        managed by nuns, he was keeping an unusually  vigilant  eye
\n        on her.    There is evidence in this case that the nuns had
\n        contacted him over  phone  as  to  whether  PW3  should  be
\n        granted  permission  to  go  out  of  the hostel on 16.1.96
\n        itself in order to give her clothes to the launderer.  This
\n        is so unusual and it speaks about the deep apprehension  of
\n        her father about her conduct and movements.  Such telephone
\n        calls  from the hostel became necessary only as insisted by
\n        him, as he was suspicious and unsure of his daughter.   PW1
\n        apprehended  that  she  may  run  away,  it is compellingly
\n        indicated.  Even when  she  was  found  missing  his  first
\n        statement  in  Ext.P1  is that he did not know why “she had
\n        run away” (……………..    …….).    It   is   also
\n        discernible  from  the evidence of DW3 and from Ext.X13 and
\n        the letter spoken to by DW3 in the second  case,  that  she
\n        had written a letter to DW3, Kochumon, the driver of a bus.
\n        Kochumon  had also deposed that PW3 had a conduct of easily
\n        getting acquaintance with all.   Her  inclination  to  have
\n        such  friendly  relationship  with a stranger like Kochumon
\n        must also be taken note of while appreciating her evidence.\n<\/p>\n
        \t61.  When such a girl had gone out of  the  custody
\n        of  her parents for about 40 days and had been with several
\n        other  persons,  it  cannot  be  said  that  her   evidence
\n        regarding  her  unwillingness for sexual intercourse should
\n        be believed  as  such  without  insisting  on  satisfactory
\n        materials for assurance, as in the case of a rape victim of
\n        a  solitary instance or being ravished by one or a group of
\n        persons for one or two days.\n<\/p>\n
        \t62.  Added to these is the  fact  that  during  the
\n        long  period  of  40  days she had been taken from place to
\n        place in public conveyances and she had been kept in lodges
\n        where others had also sought accommodation.  She  was  also
\n        taken  to  hospitals  twice, as admitted by her during this
\n        period.  But there was no attempt on  her  part  to  escape
\n        from   the  clutches  of  any  of  the  accused,  including
\n        Dharmarajan.   While  appreciating  the  evidence  on  this
\n        aspect  one  cannot  lose sight of the state of mind of her
\n        detractors – the indictees.  If they had even  a  suspicion
\n        that  she was unwilling, would they have even from the very
\n        next day i.e.  17.1.96 withstood the  risk  of  taking  her
\n        along  public  roads to public places in public conveyances
\n        and through places which she  was  familiar  with?    While
\n        appreciating  her  evidence  about her consent or otherwise
\n        such conduct of her detractors, which is inconsistent  with
\n        the  assertion  of  absence  of  consent  by  PW3 cannot be
\n        ignored or lightly wished away.\n<\/p>\n
        \t63.  After she had allegedly realised on the  night
\n        of  16.1.1996,  on  the  first  day,  in the Metro lodge at
\n        Kottayam that the mission of Dharmarajan was  not  to  save
\n        her  or  to  entrust her to her uncle at Mundakayam, but to
\n        ruin her, when she was taken on the morning of 17.1.96 from
\n        the lodge and reached  Kottayam  bus  stand;  there  should
\n        normally have  been  an attempt for escape.  There was none
\n        else at that time.  According to her even on  the  previous
\n        night,  she came to Kottayam bus stand, on her own decision
\n        to go to her aunt residing in Kottayam.  So she could  have
\n        easily   attempted   to   escape  as  it  was  a  place  of
\n        acquaintance for her.  She knows the  house  of  her  aunt.
\n        She  had  been  studying,  admittedly, in Kottayam earlier.
\n        Instead, she was, in a public conveyance,  as  admitted  in
\n        her evidence,  accompanying  Dharmarajan to Ernakulam.  Was
\n        that transportation, through territory not alien to her, of
\n        a captive minor who could at any  moment  have  foiled  the
\n        designs  of  the  only  detractor  at that time by reacting
\n        against him or was it a willing journey of a misguided girl
\n        above 16?  The question requires  and  demands  closer  and
\n        anxious  search  The  response  has  to be rational and not
\n        emotional.\n<\/p>\n
        \t64.  Ext.P57(a) register discloses that room  taken
\n        by  Dharmarajan in Metro lodge, Kottayam was vacated in the
\n        morning of 17.1.96 itself and he took a room in Anand lodge
\n        at Ernakulam only at 6.45 P.M.  on 17.1.96 as  is  revealed
\n        by Ext.P58  and  58(a).  She was thus for long hours in day
\n        light  in  the  open  space  in  Ernakulam,  a  busy  city.
\n        Necessarily  there  were  occasions  for her to escape from
\n        Dharmarajan who had, according to her, really  spoiled  her
\n        on the previous night, at least by attracting the attention
\n        of the  public.    As admitted by PW3, there was none other
\n        than him at that time with her.  At least Dharmarajan  must
\n        have been  wary  of  that  possibility.    An assessment on
\n        probabilities has to take into account all the realities of
\n        the situation – including the apprehension which must  have
\n        worked  in  the mind of Dharmarajan, the alleged tormentor,
\n        who took the risk of taking PW3 the alleged  captive  minor
\n        in that manner.\n<\/p>\n
        \t65.   She  also  did not attempt to escape when she
\n        had been kept in a room at Hotel Geeth in Trivandrum  while
\n        on  their  way from Kanyakumari to Kuravilangad, by the 4th
\n        accused.  Even going by the evidence of PW3, after an  over
\n        night  stay  in  Hotel  Geeth, in the next morning, accused
\n        No.4 had left the room keeping her alone in  the  room  and
\n        locking it  from  outside.    He  came late in the evening.
\n        Necessarily  a  person  who  was  not  consenting  to   the
\n        allegedly  atrocious  acts  of  the  4th accused or any one
\n        else, could not have remained alone there without  thinking
\n        of  the  option  to escape after two or three hours or even
\n        half a day, if she had been suffering atrocities  from  the
\n        accused persons   as   deposed   by   her.     These  human
\n        possibilities and probabilities cannot be ignored.\n<\/p>\n
        \t66.  It is also revealed that PW12 Jacob  Sait  had
\n        approached her  in  Hotel Geeth.  But as admitted by PW3 he
\n        did not commit any mischief on her.    He  was  sympathetic
\n        towards her.    She was alone in the room at that time, and
\n        on allegedly seeing her  plight,  PW12  withdrew  from  the
\n        room.  It  was  on  4.2.1996.    According  to her, she was
\n        suffering a lot for about three weeks by that time.    Even
\n        to  PW12,  a  person  of such a nature found by her for the
\n        first time after 16.1.1996, she did not  admittedly  reveal
\n        her  identity  and alleged plight, which she had admittedly
\n        spoken to other rapists; so that she could manage to escape
\n        from the 4th or other accused.\n<\/p>\n
        \t67.  It  is  also  pointed  out  that  from  Kumali
\n        Dharmarajan  had  taken  PW3 to Palghat and stayed in Hylex
\n        lodge at Palghat.  After an overnight stay, they went  over
\n        to Vanimmel in Kozhikode, where accused No.16 was residing.
\n        He  was  an  employee  in  the  Panchayat  and  a friend of
\n        Dharmarajan.   Even  going  by   the   evidence   of   PW3,
\n        Dharmarajan  had gone out leaving PW3 in the house and came
\n        back only on the next day.  She had been alone there for  a
\n        long  time,  when two teachers, who were the inmates of the
\n        house and the 16th accused had gone for their job.  A close
\n        neighbour of the house of accused No.16 has  been  examined
\n        as DW5.    He  was  also  a  witness  to  the scene mahazar
\n        prepared by the police after inspecting the house  of  16th
\n        accused.   He  had  deposed  that  he  had  seen PW3 in the
\n        courtyard and veranda of the house and  the  owner  of  the
\n        house  Nabeesa  told  him  about  the  girl in the house of
\n        accused No.16.  Thus in spite of the fact that she  had  an
\n        occasion  to  be  alone  in that house she did not make any
\n        attempt to escape.  She had been in that  house  for  three
\n        days from  22.1.96 to 25.1.96.  If the version given by PW3
\n        is correct, by that time, she had suffered almost every day
\n        from  16.1.96  onwards  continuous  rapes  by  Dharmarajan,
\n        Accused  No.5,  one Devassiachen, an absconding accused and
\n        Accused Nos.4, 7 and 16 at different places.   Any  one  in
\n        such  situation  will think of an attempt to escape, if not
\n        an escapade.\n<\/p>\n
        \t68.  It is also pointed out that she had been taken
\n        for journey for a long distance throughout the breadth  and
\n        length of the State and even beyond the State, during these
\n        40 days.    She  had  travelled  between Kanyakumari in the
\n        south and Vanimel in Calicut in the north, as spoken to  by
\n        her.   It  is  also  stated  that  she had travelled in the
\n        breadth of the State right from Ernakulam to Kumali, a hill
\n        station, and even crossed the border to Kambam and Theni in
\n        Tamil Nadu.  Mundakkayam and Kottayama, as admitted by PW3,
\n        are familiar places for her.  In Kottayam she  had  studied
\n        for few  years.    More  over,  when  she  was  placed in a
\n        helpless situation at Kothamangalam due to vanishing of the
\n        first accused on 16.1.1996, she had deliberately decided to
\n        go to Kottayam even during night to reach her  aunt  there.
\n        She  had come to Kottayam on more than two occasions during
\n        these 40 days in public conveyance and even to  bus  stand.
\n        But she  had  not  attempted  to  escape.    It  is also in
\n        evidence  that  she   had   passed   through   Mundakkayam.
\n        Mundakkayam  is also a place where she decided to go on the
\n        night of 16.1.1996 to reach her uncle.    She  had  been  a
\n        commuter  from  Mundakkayam  to  Kottayam while studying in
\n        Kottayam, as spoken to by her in the court below.  She  had
\n        passed  through  Mundakkayam  in a public conveyance during
\n        the said 40 days.  In spite of that she had  not  tried  to
\n        escape  so  that she can reach the house of her uncle, whom
\n        she had telephoned earlier.\n<\/p>\n
        \t69.  As admitted by PW3, while in  the  custody  of
\n        the  accused,  she had made a phone call to her uncle PW57.
\n        She alone knew that telephone number.  That telephone  call
\n        is of vital significance.  Why did she make that call?  Did
\n        she make it on her own?  Certainly her detractors could not
\n        have asked  her  to  make  the  call.  That would not serve
\n        their purpose at all.  She was, it is evident, free to make
\n        a telephone  call  to  her  relatives.    If  she  were  in
\n        captivity  her  detractors  would not have permitted her to
\n        make a call.  What did she tell  PW57  when  she  made  the
\n        call?   If  she  had  told  PW57  (or  if  the conversation
\n        conveyed to PW57) that she was in captivity  the  reactions
\n        of   PW57   and  PW1  (to  whom  PW57  admittedly  conveyed
\n        information of that conversation) must have been different.
\n        In Ext.P1 the allegation of PW1 was that the girl  had  run
\n        away.   If the evidence of PW3 and PW57 were true, here was
\n        information received by PW57 and PW1 that she was  captive.
\n        The  first response must have been to run to the police and
\n        inform them that the girl had not run away; but  was  taken
\n        captive detained  illegally.   What followed the telephonic
\n        conversation was not that.  The marked portions of the C.D.
\n        statement of PW1 indicates that PW57 told PW1 that PW57 had
\n        asked PW3 “to return”.  Not only PW57 but his  daughter  in
\n        law had  also  spoken  to her.  Was PW3 calling PW57 on her
\n        own free will?  Did PW57 then feel the need to  advise  her
\n        to return?    Why  did not PW57 or PW1 choose to inform the
\n        police after that call that it was not a case of  the  girl
\n        running  away  as  perceived at the time of lodging Ext.P1,
\n        but one of kidnapping of PW3 by some miscreants?   We  must
\n        look for answers to these disturbing questions also.\n<\/p>\n
        \t70.  It is also her version that she had been taken
\n        to two  doctors.    First  in Periyar Hospital in Kumali on
\n        21.2.96 and then in Anpu Hospital at Elappara  on  25.2.96.
\n        By  that time, she allegedly had pain in her private parts.
\n        On account of  painful  compelled  intercourses,  puss  was
\n        allegedly   coming  from  vagina  and  she  was  too  weak,
\n        according to her.  She had been taken by the 2nd  and  17th
\n        accused to  PW27,  the doctor at Periyar hospital.  Ext.P24
\n        is the O.P.  card in  that  hospital.    The  only  ailment
\n        spoken  to  by  her  is  sore throat, as seen from Ext.P24.
\n        Whatever that be, she had been  in  the  safe  hands  of  a
\n        doctor and  in  a  secure  place like a hospital.  She had,
\n        according to her, as  spoken  to  in  court,  very  painful
\n        ailments at  that  time  including  in  her  Vagina.    But
\n        according to PW27, the doctor, “she appeared normal in gait
\n        and appearances”.  She told him that she went for  a  visit
\n        in  Thekkady,  a  place of tourist attraction and was going
\n        back to Ponkunnam.  Ponkunnam is not  her  place,  but  the
\n        place of  one  of the accused.  Even if it had been said so
\n        by any one else, nothing  prevented  her  to  disclose  her
\n        plight to  the  doctor while in that hospital.  This cannot
\n        be the words and attitude of a girl subjected to  rape  for
\n        several days  together.  She did not even disclose her true
\n        name to the  Doctor.    Ext.P24  O.P.    card  discloses  a
\n        different name.  If she was in real difficult situation she
\n        could  at  least  try  at  that  moment  to escape from the
\n        clutches of the accused  and  Dharmarajan  and  can  safely
\n        reach her  parents  or  her  uncle.  A person suffering the
\n        trauma described by her for a month will certainly try  for
\n        that;  because nobody can snatch her away from the hospital
\n        and from the hands of a doctor.  Her conduct that  she  did
\n        not do so even in that situation certainly speaks volumes.\n<\/p>\n
        \t71.   It  is  also  in  her evidence that the third
\n        accused Jamal took her to his relatives and kept  her  with
\n        his relatives  for  an  over night stay on 25.2.96.  During
\n        the night  she  developed  stomach  pain.    She  had   not
\n        admittedly  revealed  her identity or plight to the inmates
\n        of that house, who were only ladies.  They had taken her to
\n        Anpu hospital for treatment by PW28, the doctor there.  She
\n        did not reveal her correct name to the doctor  there  also.
\n        In  Ext.P25  prescription  card  her  name  is  written  as
\n        `Anjali’.  According to her she had constipation  and  back
\n        pain.  She  was very weak.  It is in evidence of PW.28, the
\n        doctor and  PW29,  the  nurse  there,  that  she  had  been
\n        administered enema.  For this the nurse had to undress her.
\n        Necessarily  if  any  discolouration  or  inflammation  was
\n        there, it would have been noticed by the nurse.  The doctor
\n        had deposed that she was not terrified.  PWs.28 and 29 have
\n        deposed that after  administration  of  enema,  she  became
\n        normal and  was  relieved  of her debilities.  She could at
\n        that time reveal her identity to PW28,  the  doctor  or  to
\n        PW29, the nurse.   She did not do so.  So unusual a conduct
\n        of a person, if she really did not like the company of  the
\n        accused.\n<\/p>\n
        \t72.   Visits to the doctors assume significance and
\n        relevance.  Even for a comparatively minor ailment of  sore
\n        throat for  a  day  she  was  taken to a doctor.  Does that
\n        indicate  cruel  conduct  of  the  captors  or  sympathetic
\n        conduct of  friendly individuals?  If her version were true
\n        she was going on telling the persons brought by her captors
\n        for prostitution that she was unwilling.   She  fully  knew
\n        that such persons would tell her detractors of her conduct.
\n        The  evidence  is  that  her  detractors  knew that she was
\n        telling so to such persons.  She  was  allegedly  taken  to
\n        task for  such  behaviour.    If  she would tell so to such
\n        persons, knowing the risk involved, why did  she  not  tell
\n        the independent  doctors?    If  her detractors knew or had
\n        reason to think that she may divulge  inconvenient  details
\n        even  to persons brought by them, would they have taken the
\n        risk of taking her to respectable doctors for such a  minor
\n        ailment like  sore  throat?  It doesn’t appear to be normal
\n        conduct of ordinary individuals to do so.  These disturbing
\n        possibilities have also to  be  taken  into  account  while
\n        considering the acceptability of the evidence of PW3.\n<\/p>\n
        \t73.   It  is also to be noted at this juncture that
\n        whenever a rapist came to her, she had  revealed  that  she
\n        had heavy pain and she was cheated, she was the daughter of
\n        Munnar  Postmaster  and  she  had also revealed her correct
\n        name.  It is unbelievable that such a person did not reveal
\n        her identity to PWs.  27, 28 and 29, in whose hands she was
\n        safe, She could have revealed her identity or at least  her
\n        alleged  ailments  on  those two occasions and attempted to
\n        escape from the jaws of the rapists.\n<\/p>\n
        \t74.   These  are  sufficient  indications  in   the
\n        conduct  on  the  part  of  PW3 that her evidence as a rape
\n        victim cannot be treated as in the case of any  other  rape
\n        victim in  the  decided  cases cited before us.  As held in
\n        Rafiq (1980 SCC (Crl) 947) extracted supra, the  facts  and
\n        circumstances  often  vary  from  case  to  case, the crime
\n        situation and the myriad psychic factors and  so  on.    So
\n        rules  of  prudence  relevant  in one fact situation may be
\n        inept in another.  To quote the words  of  Justice  Krishna
\n        Iyer once again,<\/p>\n
         “We  cannot  accept the argument that regardless of
\n                the specific circumstances of a crime and  criminal
\n                milieu,  some standard of probative reasoning which
\n                appealed to a Bench in one reported  decision  must
\n                mechanically be extended to other cases.”\n<\/p>\n
        \t75.   So  taking  all  the  aforesaid circumstances
\n        together a person like PW3, who deposed that more  than  30
\n        persons  were  having  intercourse  with  her  at different
\n        places like Kumali, Theni, Kambam, Palaghat  and  Vanimmel,
\n        it  cannot be believed from her evidence alone that she was
\n        not a consenting partner.  As a guidance of prudence  under
\n        the  given  circumstances, at least convincing assurance if
\n        not corroboration has to be searched for judicial  reliance
\n        on the  testimony of the prosecutrix in this case.  In this
\n        case necessarily apart from  assurance,  corroboration  may
\n        really  be  required before a conviction is entered into in
\n        respect of  a  serious  offence  under  Section  376(1)  or
\n        376(2)(g) believing  her  testimony.    The evidence of PW3
\n        does not appear to be  cogent  and  convincing  to  inspire
\n        confidence  for  the  aforesaid reasons, because as held in
\n        Vimal Suresh (2003 (3) SCC 175):\n<\/p>\n
         “the evidence of the prosecutrix in  this  case  is
\n                not of such quality”\n<\/p>\n
        to   be  acted  upon  without  corroboration  or  at  least
\n        assurance that she is making a truthful statement.\n<\/p>\n
        \t76.  Whether PW3 was a  consenting\/willing  partner
\n        for the  intercourse  is  the  moot  question.   As already
\n        mentioned, this is not an occasion of a sudden and solitary
\n        instance of rape, nor a situation of a  forcible  abduction
\n        and consequent rape for a day or two.  According to her she
\n        had  been raped continuously for nearly 40 days except when
\n        she was on  her  menstrual  periods  once,  by  several  at
\n        different  places  in  the State and outside, in hotels and
\n        rest houses including in places of tourist attraction  like
\n        Kanyakumari and  Kumily.    Absence  of consent on all such
\n        occasions, in spite of several  instances  when  she  could
\n        have  escaped  as  mentioned above, cannot be gathered only
\n        from  her  evidence  or  from  what  she  says  in   court.
\n        Assurance\/corroboration  not ocular, but from circumstances
\n        and broad probabilities, must be searched for.  It  has  to
\n        be  examined in the light of the peculiar fact situation of
\n        this case.\n<\/p>\n
        \t77.  As held in Rao Harnarain Singh v.  State  (AIR
\n        1958   Punjab   123);  relied  on  by  the  Special  Public
\n        Prosecutor:\n<\/p>\n
         \t“A woman is said to consent, only when  she
\n                freely  agrees to submit herself, while in free and
\n                unconstrained possession of her physical and  moral
\n                power to  act  in  a  manner  she  wanted.  Consent
\n                implies the exercise of  a  free  and  untrammelled
\n                right to forbid or withhold what is being consented
\n                to;   it   always  is  a  voluntary  and  conscious
\n                acceptance of  what  is  proposed  to  be  done  by
\n                another and concurred in by the former.”\n<\/p>\n
        The decision  in  State of Maharashtra v.  Prakash and<\/a> anr.
\n        (1992 Crl.LJ 1924) relied on by the Public Prosecutor,  has
\n        no relevance  to the fact situation in this case.  It was a
\n        case of rape by a police constable at  whose  instance  the
\n        victim was called out from the house in the late hours at 2
\n        a.m.  It is in such peculiar fact frame that the Apex Court
\n        held that:\n<\/p>\n
         “To  these  poor  rustic  helpless  villagers,  the
\n                police  constable  represents  absolute  authority.
\n                They had  no  option but to submit to his will.  In
\n                all  the  facts  and  circumstances  of  the  case,
\n                therefore,  we  are of the opinion that the learned
\n                single  Judge  was  in  error  in  acquitting   the
\n                accused.  Accordingly, we set aside the judgment of
\n                the  learned  single  Judge and restore that of the
\n                learned Sessions Judge.”\n<\/p>\n
        The other decision  relied  on  by  the  Public  Prosecutor
\n        reported in  State  of Himachal Pradesh v.  Mange Ram<\/a> (2000
\n        Crl.LJ 4027) is a case where:\n<\/p>\n
         According  to  the  prosecutrix  she  resisted  the
\n                accused by scratching him with nails”,<\/p>\n
        and where<\/p>\n
         she  also  stated that the accused gagged her mouth
\n                when she attempted to cry aloud.”\n<\/p>\n
        In the 590 pages long deposition  in  the  first  case  and
\n        another  520  pages long deposition in the second case, PW3
\n        has no case that she had made any resistance even on any of
\n        the occasions of  alleged  rapes.    The  alleged  physical
\n        threat by the rapist was only once on the first occasion of
\n        rape.   So the said decision also has no application to the
\n        facts situation here.\n<\/p>\n
        \t78.  Even in Uday v.  State of Karnataka (AIR<\/a>  2003
\n        SC  1639)  relied  on by the Public Prosecutor, the Supreme
\n        Court has made it clear that:\n<\/p>\n
         In the ultimate analysis, the test laid down by the
\n                Courts provide at best  guidance  to  the  judicial
\n                mind  while  considering a question of consent, but
\n                the Court must, in each case, consider the evidence
\n                before it and the surrounding circumstances, before
\n                reaching a conclusion, because each  case  has  its
\n                own  peculiar facts which may have a bearing on the
\n                question whether the consent was voluntary  or  was
\n                given under  a misconception of fact.  It must also
\n                weigh the evidence keeping in view  the  fact  that
\n                the  burden is on the prosecution to prove each and
\n                every ingredient of the offence, absence of consent
\n                being one of them.\n<\/p>\n
        \t79.  In this background it is advantageous to refer
\n        to two decisions of the Apex  Court.    The  first  one  is
\n        Jinish Lal Shah v.  State of Bihar (2003 (1) SCC 605).  The
\n        facts there are almost similar to the case on hand.  In the
\n        case  on  hand in the light of the letter written by PW3 it
\n        cannot be ruled out that she had not left  her  parents  on
\n        her own.    She  was  away  from  her house from 16.1.96 to
\n        25.2.1996.  She went away with clothes and money.   Keeping
\n        this  in  mind,  the  following  dictum  in  Jinish Lal Sha
\n        (supra) can be read.\n<\/p>\n
         If we see the  sequence  of  events  starting  from
\n                30.4.1989  to  10.5.1989  it  is clear that she has
\n                accompanied the appellant willingly.\n<\/p>\n
        \t\txx\txx\t\txx<\/p>\n
         On the contrary, we notice she was  with  him  from
\n                30th April to 10th May, during which period she had
\n                travelled  by  train,  tempo  and  stayed  with the
\n                appellant without there being any evidence  of  her
\n                having  protested or having made any effort to seek
\n                help from others or even trying to run away.  Apart
\n                from that from the record, it is seen that  PW6  in
\n                the  FIR had stated that “I got information from my
\n                wife in the house that Geeta went  away  by  taking
\n                clothes  and  a gold chain and she took Rs.500\/- in
\n                cash in total amounting to Rs.8500\/-” This evidence
\n                though subsequently resiled by PW6  indicates  that
\n                PW1  had  planned  her  departure from the house in
\n                advance  and  had  willingly  gone  away  with  the
\n                appellant  which  also  indicates that there was no
\n                threat  or  inducement  either  in  regard  to  her
\n                leaving  the house or in regard to accompanying the
\n                appellant.  In such situation in the absence of any
\n                other material to show to the contrary, it will  be
\n                difficult  to  accept  the  prosecution  case  that
\n                either there was a forcible  marriage  or  rape  as
\n                contended  by the prosecution to find the appellant
\n                guilty under Section 366 or 376  IPC.    Since  the
\n                courts  below proceeded on the basis that PW1 was a
\n                girl below the age of 18 on the date when she  left
\n                the  house  they  have not properly appreciated the
\n                evidence in  regard  to  her  consent  which  is  a
\n                mandatory   requirement  before  finding  a  person
\n                guilty under Section 366 or 376 IPC.\n<\/p>\n
        The other decision is Kuldeep Mahato v.    State  of  Bihar
\n        ((1998) 6 SCC 420).  It was held:\n<\/p>\n
         \t“Then  coming  to  the  conviction  of  the
\n                appellant under Section 376 IPC, although both  the
\n                courts below have held after accepting the evidence
\n                of  the  prosecutrix  as  being  truthful  that the
\n                appellant had forcibly committed the rape,  we  are
\n                of   the   opinion   that   the   said  finding  is
\n                unsustainable.   The  prosecutrix  had   sufficient
\n                opportunity  not only to run away from the house at
\n                Ramgarh but she could have also taken the  help  of
\n                the neighbours  from the said village.  The medical
\n                evidence  of  Dr.Maya  Shankar  Thakur,  PW5   also
\n                indicates that there were no injuries on the person
\n                of  the  prosecutrix  including  her private parts.
\n                Her entire conduct clearly shows  that  she  was  a
\n                consenting  party  to the sexual intercourse and if
\n                this be so, the conviction of the  appellant  under
\n                Section 376  IPC cannot be sustained.  There is one
\n                more additional factor which we must  mention  that
\n                it  is not the case of the prosecutrix that she was
\n                put in physical restraint in the house at  Ramgarh,
\n                with the result that her movements were restricted.
\n                This circumstance also goes to negative the case of
\n                forcible  intercourse  with  the prosecutrix by the
\n                appellant.”\n<\/p>\n
        In the light of the facts discussed above, these  dicta  as
\n        aforesaid can safely be applied to this case to come to the
\n        conclusion  that  there  is  no convincing evidence to show
\n        that she was not an unwilling partner for the sexual
\n        intercourse.  The claim of the  accused  to  at  least  the
\n        benefit of doubt has to be considered anxiously.\n<\/p>\n
        \t80.   It  cannot  be  contended  any  more,  as the
\n        learned Public Prosecutor did, that the absence of  consent
\n        is  a matter beyond the burden of proof by the prosecution.
\n        The definition of rape under Section 375  I.P.C.    reveals
\n        that  a  person having intercourse with a woman against her
\n        will and without her consent is guilty of that offence.   A
\n        man  shall  be  said  to  commit  rape  if  he  had  sexual
\n        intercourse with a woman  against  her  will,  without  her
\n        consent or with the consent generated by putting her or any
\n        person  in  whom  she  is interested in fear of death or of
\n        hurt.  Admittedly, according to the  prosecution,  PW3  had
\n        crossed the age  of  consent, viz.,.  16 years.  So want of
\n        consent is an ingredient of the offence and that ingredient
\n        has to be  proved  by  the  prosecution  by  some  reliable
\n        evidence.   Then alone rebuttal by proving positive consent
\n        arises.  The Supreme Court in Uday (AIR 2003 SC  1639)  has
\n        made it explicit in unequivocal terms that court:\n<\/p>\n
         “must  also  weigh the evidence keeping in view the
\n                fact that the burden is on the prosecutrix to prove
\n                each and every ingredient of the  offence,  absence
\n                of consent, being one of them”.\n<\/p>\n
        This was  again  reiterated  in  Deelip  Singh v.  State of
\n        Bihar (JT 2004 (9) SC 469) that:\n<\/p>\n
         “the burden is on the  prosecutrix  to  prove  that
\n                there was absence of consent.”\n<\/p>\n
        \t81.   Consent  is  certainly  “an  act  of  reason,
\n        accompanied with deliberation, the mind of weighing, as  in
\n        a balance,  the  good  and  evil on each side”.  The Public
\n        Prosecutor is justified in contending so.  Consent supposes
\n        three things – a physical power, a mental power and a  free
\n        and serious  use  of them.  These ensure only the avoidance
\n        of intimidation, force, undue influence etc.  It  does  not
\n        mean   that  use  of  these  factors  shall  result  in  an
\n        intelligent, wise and righteous decision.  In other  words,
\n        it  should  not  be a mere act of helpless resignation, non
\n        resistance and passive giving in.   Therefore  as  held  in
\n        State of  Himachal  Pradesh  v.   Mango Ram (JT<\/a> 2000 (9) SC\n<\/p>\n
        408):\n<\/p>\n
         “Whether  there  was  consent  or  not  is  to   be
\n                ascertained only on a careful study of all relevant
\n                circumstances.”\n<\/p>\n
        \t82.  Section  90  I.P.C.   specifies what cannot be
\n        regarded as consent under the Code.   Consent  given  under
\n        fear  of  injury  and  under  misconception  of fact is not
\n        consent at all.  That is what is enjoined by the first part
\n        of Section 90.  This is from  the  point  of  view  of  the
\n        victim.   The  second part of Section 90 envisages that the
\n        indictee must have knowledge or reason to believe that  the
\n        consent  was  given by the victim in consequence of fear of
\n        injury or misconception of fact.  Thus the second part lays
\n        emphasis on the  knowledge  or  reasonable  belief  of  the
\n        person who  obtains  the tainted consent.  The requirements
\n        from the points of view of both  the  parties  have  to  be
\n        cumulatively satisfied.    It has been held in Deelip Singh
\n        (JT 2004 (9) SC 469) that:\n<\/p>\n
         “In other words, the court has to see  whether  the
\n                person  giving  the consent had given it under fear
\n                of injury or misconception of fact  and  the  court
\n                should  also be satisfied that the person doing the
\n                act i.e.  the alleged offender, is conscious of the
\n                fact or should have reason to think  that  but  for
\n                the  fear  or  misconception, the consent would not
\n                have been given.  This is the scheme of Section  90
\n                which is couched in negative terminology.”\n<\/p>\n
        Again as cautioned in that decision itself:\n<\/p>\n
         The  decided  cases  on  the issue reveal different
\n                approaches   which   may   not    necessarily    be
\n                dichotomous.   Of  course  the  ultimate conclusion
\n                depends on the facts of each case.”\n<\/p>\n
        \t83.   We  have   pointed   out   earlier,   several
\n        situations  including  in hospitals when the victim in this
\n        case had the sure chances for  escaping  from  the  accused
\n        who,  according  to  her, put her in great trauma of sexual
\n        exploitation.   Reversing  the  conviction  under   Section
\n        376(1) as confirmed by a High Court, the Supreme Court held
\n        in Kuldeep  K.Mahato  v.   State of Bihar (1998) 6 SCC 420)
\n        that:\n<\/p>\n
         \t“Then  coming  to  the  conviction  of  the
\n                appellant  under Section 376 IPC, although both the
\n                courts below have held after accepting the evidence
\n                of the  prosecutrix  as  being  truthful  that  the
\n                appellant  had  forcibly committed the rape, we are
\n                of  the  opinion   that   the   said   finding   is
\n                unsustainable.    The  prosecutrix  had  sufficient
\n                opportunity not only to run away from the house  at
\n                Ramgarh  but  she could have also taken the help of
\n                the neighbours from the said village.  The  medical
\n                evidence of  Dr.    Maya  Shankar  Thakur, PW5 also
\n                indicates that there were no injuries on the person
\n                of the prosecutrix  including  her  private  parts.
\n                Her  entire  conduct  clearly  shows that she was a
\n                consenting party to the sexual intercourse  and  if
\n                this  be  so  the conviction of the appellant under
\n                Section 376 IPC cannot be sustained.”\n<\/p>\n
        \t84.  More over, is it safe to sentence three dozens
\n        of persons solely on the uncorroborated  testimony  of  PW3
\n        which arouses in the mind of the court the dissatisfactions
\n        referred above?  Even in a rape case involving half a dozen
\n        persons,  that  too  in  an alleged rape only on a day, the
\n        Supreme Court in Surjan & ors.  v.  State  of  M.P.    (AIR<\/a>
\n        2002  SC 476) observed – we may quote on fear of repetition\n<\/p>\n
        – as follows:\n<\/p>\n
         “In a case where six  indicted  persons  should  be
\n                visited  with  a  minimum sentence of 10 years’ RI,
\n                the   Court   cannot   afford   to   act   on   the
\n                uncorroborated  testimony of the prosecutrix unless
\n                the said evidence is wholly reliable.”\n<\/p>\n
        In the line of the reasoning adopted by the  Supreme  Court
\n        in Sudhansu  Sekhar  Sahoo v.  State of Orissa (AIR<\/a> 2003 SC
\n        2136):\n<\/p>\n
         “All these factors cast  a  serious  doubt  on  the
\n                prosecution case.    Though  there  is  no apparent
\n                motive for Ms.X to falsely implicate the appellant,
\n                it may be that Ms.X must have changed her mind when
\n                she came to know that others must have come to know
\n                of her conduct.  So there are so many loose ends in
\n                the prosecution case.  On a  consideration  of  the
\n                broad  probabilities  of  the  case,  we  feel that
\n                various factors cast  a  serious  doubt  about  the
\n                genuineness of the case of Ms.  X that she had been
\n                forcibly ravished  by the appellant.  The appellant
\n                is certainly entitled to the benefit of doubt.”\n<\/p>\n
        \t85.  In the aforesaid  circumstances,  we  have  to
\n        seek  corroboration  or  at  least  some  assurance  to the
\n        evidence of PW3 on the precise aspect of want  of  consent.
\n        It  is  not  enough  if  there  is evidence of presence and
\n        intercourse between PW3 and the indictees.   Assurance  and
\n        satisfaction  is  needed  on  the precise aspect of want of
\n        consent.  Keeping in mind the aspects dealt  with  earlier,
\n        we  are hesitant to place implicit and absolute reliance on
\n        the testimony  of  the  prosecutrix  alone  on  this  vital
\n        aspect.  The judicial conscience does not get the assurance
\n        which it is strenuously searching for on this vital aspect.
\n        The  Supreme Court in Chandraprakash Kewalchand Jain’s case
\n        (supra) observed that:\n<\/p>\n
         “If for some reason the Court is hesitant to  place
\n                implicit   reliance   on   the   testimony  of  the
\n                prosecutrix it may look for evidence which may lend
\n                assurance to her testimony short  of  corroboration
\n                required in the case of an accomplice.”\n<\/p>\n
        We  did  not  get  any  assurance  on  absence  of consent.
\n        Necessarily it is to be held that the prosecution failed to
\n        prove that there was  absence  of  consent  in  this  case.
\n        Therefore, giving the benefit of doubt the conviction under
\n        Section 376(1)  I.P.C.    shall have to be reversed in this
\n        case.\n<\/p>\n
        \t86.  It is also to be noted that during the sojourn
\n        of 40 days, there was no physical restraint of P.W.3.   She
\n        had been  allowed  to  travel  freely.  She does not have a
\n        case that she was confined in the house of  Accused  No.38.
\n        As  spoken  to  by D.W.4, she was seen in the courtyard and
\n        verandah in the house of Accused No.16.  She was  alone  in
\n        Hotel  Geeth  at  Trivandrum  in  a  room  for a whole day.
\n        P.W.12 was compassionate towards her while in  that  hotel.
\n        No body  else  was  there  at  that time.  When there is no
\n        physical restraint, that will speak much about the  consent
\n        for sexual intercourse.  This is one more additional factor
\n        to be considered as held in Kuldeep K.  Mahato v.  State of
\n        Bihar (1998 (6) SCC 420) as follows:\n<\/p>\n
         “There  is one more additional factor which we must
\n                mention that it is not the case of the  prosecutrix
\n                that she was put in physical restraint in the house
\n                at Ramgarh, with the result that her movements were
\n                restricted.    This   circumstance   also  goes  to
\n                negative the case of forcible intercourse with  the
\n                prosecutrix by the appellant.”\n<\/p>\n
        \t87.   There  were  several  occasions  for P.W.3 to
\n        reveal her identity to the non-rapists with  whom  she  had
\n        come across  and sought help.  That she did not do so is an
\n        indicative factor that she may not have been  unhappy  with
\n        those who  had  been  keeping  her.   She did not raise any
\n        objection with the treatment that she  was  receiving  from
\n        their hands.    If  she  had  any humiliating or unbearable
\n        treatment, she could have, while in bus  or  bus  stand  on
\n        several  occasions or in hospitals on two occasions or with
\n        P.W.12 who showed mercy towards her or while in  the  house
\n        of  A16,  A38  or  A39  or in the house of the relatives of
\n        accused No.3, escaped or at least attempted to escape  from
\n        the clutches of the accused.\n<\/p>\n
        \t88.   The  medical  opinion  available in this case
\n        also is of no help to the prosecution to prove  that  there
\n        was intercourse  using  force.   As admitted by the victim,
\n        P.W.3, on 21\/2\/1996, the accused Nos.2 and 17 took  her  to
\n        the Periyar Hospital at Kumily.  P.W.27 is the Doctor there
\n        and Ext.P24 is the O.P.  card.  The ailment as disclosed by
\n        Ext.P24 was  sore  throat  since a day and mild cough.  Her
\n        real name was not disclosed there.  According to  her,  she
\n        was  taken  by  them to the Hospital from the rest house at
\n        Kumily.  She was brought there on 15\/2\/96.  At  that  time,
\n        she says in evidence that, there was puss in her vagina and
\n        that  accused  No.3 and Dharmarajan took several persons to
\n        her room.  From 15\/2\/96 to 21\/2\/96 when she  was  taken  to
\n        the hospital, according to her, inspite of puss coming from
\n        her vagina, accused Nos.12, 11, 15, 13, 20, 37, 24, 31, 26,
\n        25,  19,  18,  Dharmarajan  and Devassiachan had raped her.
\n        Few of them had raped her even more than once.    According
\n        to  her,  during  those  days her condition was precarious.
\n        She had acute pain on the back of her hip.\n<\/p>\n
        \t89.  To rape a girl with such  ailments,  pain  and
\n        infected  vagina may be humanly impossible, as contended by
\n        the appellants, except with roaring cry of the victim.  She
\n        has no case that she cried aloud on any occasion.  It is in
\n        this background, the ailment of sore throat  complained  of
\n        to P.W.27  Doctor  on 21\/2\/96 has to be viewed.  Even if as
\n        stated by P.W.3, the ailment has been told by  any  of  the
\n        accused  who  accompanied  her  or  even  if  any  one  had
\n        threatened her not to disclose her true name  or  cause  of
\n        ailments,  nothing  prevented  her  to  disclose  her  full
\n        details and predicament to P.W.27, a doctor  while  in  his
\n        hospital.   She was in the protection of a doctor in a safe
\n        place like hospital wherefrom no one could snatch her away.
\n        A person like P.W.3 with the ailments as spoken to  by  her
\n        during  those  days  could  not  be  believed  to  have not
\n        disclosed such ailments if there had  been  such  ailments.
\n        P.W.27, the doctor also deposed that she was normal in gait
\n        and  appearance  and  that  P.W.3 told him, that she was on
\n        visit to Thekkady a hill  resort  and  was  on  her  return
\n        journey to  Ponkunnam.  Thus, she had told these details to
\n        the doctor.  If somebody  else  told  so,  she  could  have
\n        revealed  the  truth to the doctor, while in that hospital.
\n        This is indicative of the fact that  there  was  no  forced
\n        intercourse  by nearly 15 persons as mentioned above during
\n        that week.  If she suffered any such pain or ailment as  to
\n        make  intercourse  painful  and  hence  impossible,  it  is
\n        unlikely that she would not have complained to the doctors.\n<\/p>\n
        \t90.  Again, the relatives of Accused No.3 took  her
\n        to Anbu  Hospital,  Elappara on 25\/2\/96.  It is to be noted
\n        that from Periyar Hospital she was taken  to  Kambam  where
\n        according  to her two persons including accused No.35 raped
\n        her.  Later she was taken to Kumily again.  She was  unable
\n        to walk,  she  says.   She stayed with accused Nos.2 and 17
\n        for two days.  Later she was taken  to  the  house  of  the
\n        relatives of  accused No.3.  It was from that house she was
\n        taken to Anbu Hospital.\n<\/p>\n
        \t91.  P.W.28 is the Doctor in Anbu Hospital.  P.W.29
\n        is the nurse there.  Ext.P25 is the treatment card.    This
\n        discloses that her only complaint was constipation and back
\n        pain.   There  also  she did not disclose her true name and
\n        identity.  The doctor prescribed enema  and  an  injection.
\n        According  to him, “she was not terrified”, “her heart beat
\n        was normal”, though “she was very  weak”,  and  “after  the
\n        treatment, patient  was relieved of her symptoms”.  He says
\n        that “repeated intercourse may cause constipation”.  P.W.29
\n        nurse administered enema.  According to her, she  had  been
\n        with P.W.3 for about 30 minutes.  P.W.3 did not during this
\n        time reveal  her  plight to this nurse also.  This evidence
\n        of P.W.28, P.W.29 and Ext.P25 also do not reveal any  rape.
\n        P.W.3  could  have, if she had been in the beastly clutches
\n        of the accused, told the doctor her true situation, if  she
\n        had been  in such predicament.  The inescapable probability
\n        is that even on such second occasion when she  visited  the
\n        doctor  she did not suffer from any such ailment as to make
\n        intercourse painful and unbearable.  Her physical condition
\n        then cannot convincingly contra indicate consent.\n<\/p>\n
        \t92.  As already mentioned above, her sojourn of  40
\n        days  ended on 26\/2\/96 when she reappeared in the office of
\n        her father, P.W.1.  According to him, she was very weak and
\n        was not in a position to walk.  Inspite of that she was not
\n        taken to any doctor on that day.  Her mother is a nurse  in
\n        a Hospital.    She  also  did not take her to any hospital.
\n        She was brought near the police station of P.W.82  who  was
\n        investigating  the  man  missing  case  registered  as  per
\n        Ext.P1(a) FIR.  He did not take her statement.  He did  not
\n        even see  her.    She was not produced before a Magistrate.
\n        Inspite of all these she was allowed to go home with P.W.1.
\n        According to P.W.1, she disclosed the entire story  to  her
\n        mother.   She,  being a paramedical staff, did not think of
\n        taking her to hospital.  Next day also she was not taken to
\n        hospital.  She was brought to the police station  by  P.W.1
\n        again.   These  reveal at least a doubt that she was not in
\n        such an unhealthy position as P.W.3 or P.W.1 says in court.
\n        The theory that she could not have consented to any  sexual
\n        intercourse on 25\/2\/96 or the immediately preceding days is
\n        not  supported  by  her  physical condition as perceived by
\n        P.W.1 or his wife, who did not take her to  a  doctor  till
\n        28\/2\/96.\n<\/p>\n
        \t93.    She  was  taken  to  a  doctor  for  medical
\n        examination only on 28\/2\/96  by  P.W.95.    P.W.73  is  the
\n        Doctor who  examined  her  at about 2.30 P.M.  on that day.
\n        Ext.P95 is the report of that medical examination.  It  did
\n        not  reveal  any  struggle by P.W.3, perhaps because of the
\n        passage of time as submitted by the Public Prosecutor.  But
\n        it is crucial that even P.W.3  had  no  case  of  any  such
\n        violent  physical  resistence  by her against the rapist at
\n        any time.\n<\/p>\n
        \t94.  Vaginal examination  was  painful,  valva  was
\n        oedematous.  There  was infection.  There was purulent foul
\n        smelling discharge.    P.W.73  says  that   intra   uterine
\n        contraceptive device   can   also   cause  infection.    In
\n        chief-examination he says that  “she  would  have  suffered
\n        severe  pain  during  the sexual act if it had continued as
\n        stated by her during the period of infection’.  In  further
\n        cross,  he  says that, he examined vaginal wall and that he
\n        did not find it lacerated.   He  also  agreed  that  during
\n        violent  intercourse  “laceration  in  vaginal  wall occurs
\n        posteriorly”.  In further cross-examination by the  accused
\n        he answered specific questions as follows:\n<\/p>\n
         “On  the  condition  you  had  seen  when P.W.3 was
\n                examined by you, I  put  it  you  that  it  is  not
\n                possible to have sexual intercourse with P.W.3(Q).\n<\/p>\n
         It  is  possible provided force and intimidation is
\n                used (A).  If force is used she  would  cry  loudly
\n                (Q) Yes (A)”.\n<\/p>\n
        P.W.3 has no case that she had even wept while  during  the
\n        alleged rapes  continuously,  much less any loud cry.  Even
\n        on the night of 24\/2\/96, there was, allegedly, rape on her.
\n        In spite of that no resistance mark was found on her  body.
\n        According  to  P.W.73,  the  Doctor  “there was no signs or
\n        evidence of  resistance”.    According  to  him,  sign   of
\n        resistance is the most common feature in a case of rape and
\n        as  she  was subjected to violent sexual intercourse “there
\n        can be signs of resistance”.  Of course,  as  submitted  by
\n        the Special Public Prosecutor, signs of resistance is not a
\n        conclusive factor  to  determine  consent as such.  But, in
\n        the over all circumstances of this case and  alleged  rapes
\n        continuously   for   days   together  by  several  persons,
\n        necessarily, it must  be  reckoned  as  a  relevant  input.
\n        Thus, the medical evidence in this case also does not offer
\n        any  specific  and  satisfactory probative corroboration to
\n        the testimony of P.W.3.\n<\/p>\n
        \t95.   We are unable to persuade ourselves to accept
\n        the omnibus explanation that P.W.3, a girl of less than  17
\n        years  of  age, was terrified and all the pieces of conduct
\n        and circumstances which are incongruent to  the  theory  of
\n        absence  of  consent  deserves to be ignored on that score.
\n        The Investigating Officer – P.W.97 appears  to  have  felt,
\n        perhaps rightly, as it seems to us, that he need not unduly
\n        worry  about  the  acceptability  of  the evidence of P.W.3
\n        about want of conseent.  He appears to have  swallowed  the
\n        later  assertions  of  P.W.3  leaving  it  to  the court to
\n        consider whether P.W.3 should be believed or the benefit of
\n        doubt should be conceded to the accused.   One  should  not
\n        approach  the  question of acceptability of the evidence in
\n        an over simplified manner – that P.W.3 is a girl of  tender
\n        age i.e.    sixteen plus; that she has no reason to consent
\n        to sexual intercourse; that love, lust or money  could  not
\n        have  persuaded  her  to consent; and that consequently she
\n        would not have consented.\n<\/p>\n
        \t96.  Money she needed.  She was  willing  to  raise
\n        the  same  even  by  objectionable  manner  admittedly – by
\n        misappropriating Rs.450\/to be paid as hostel fees,  and  by
\n        clandestinely pledging  her ornaments to the jeweller.  She
\n        was admittedly willing to “go on a tour” with Accused  No.1
\n        without any specific plan for marriage and family life with
\n        him.   She  cladestinely  took her mother’s sarees and cash
\n        with her when she left her home planning all  the  time  to
\n        deceive her  parents.    The learned Sessions Judge was too
\n        unsuspecting, non-cautious and willing  to  accept  P.W.3’s
\n        evidence on want of consent.  Perhaps the error in approach
\n        lay there.    The  question  of  consent was decided by the
\n        learned  Sessions  Judge  without  cautious  consideration,
\n        without   critical   assessment,   without   assessment  of
\n        probabilities, without refering alertly to the law relating
\n        to burden of proof and benefit of doubt.  We are unable  to
\n        endorse that  very  approach.  The appreciation of evidence
\n        by court cannot be that of an indulgent unfortunate  parent
\n        of the  victim  girl.   Even in the wake of the unfortunate
\n        plight of P.W.3 and the trauma of the  parents,  the  court
\n        cannot lose  its  poise  and  be  swayed.    Objective  and
\n        critical analysis is the unavoidable duty of the court.\n<\/p>\n
        \t97.  We do also  note  that  the  learned  Sessions
\n        Judge  did  not  at all consider the question whether there
\n        was manifestation of the alleged absence of consent on  the
\n        part  of  P.W.3 and whether the same was signified to those
\n        who had sexual intercourse with her.  Going by the case  of
\n        the  prosecution,  many  of  the  accused  went to her only
\n        assuming that she is a prosotitute.  Going to a  prostitute
\n        is improper   and   immoral.    It  offends  the  sense  of
\n        righteousness of the enlightened  members  of  the  polity.
\n        But  the  criminal court is not pronouncing on morality but
\n        culpability.  When most of them entered  her  room  or  she
\n        (P.W.3)  entered their room, the male indictees were guilty
\n        only of the immorality  of  going  to  a  woman,  who  they
\n        thought was  a  prostitute.   It becomes rape only when she
\n        conveyed her unwillingness within the  closed  room.    Her
\n        omnibus statement that to all who approached her inside the
\n        closed  room  she  had  verbally conveyed and signified her
\n        absence of consent cannot be readily swallowed  considering
\n        the anterior, immediate and subsequent conduct of hers.  At
\n        any  rate, we are persuaded to favourably consider the plea
\n        for benefit of doubt.\n<\/p>\n
        \t98.  That most, if not all,  the  accused  had  not
\n        specifically pleaded consent cannot persuade this Court not
\n        to  consider that plea which arises on probabilities and on
\n        the basis of arguments raised.    The  conduct  alleged  is
\n        certainly   immoral,   by  accepted  norms  of  respectable
\n        behaviour.   That  the  accused   did   not   admit   their
\n        indiscretion\/immorality  cannot  persuade us to ignore that
\n        contention.\n<\/p>\n
        \t99.  While assessing broad  proabilities,  we  must
\n        note that P.W.3 and her parents needed an explanation to be
\n        offered  for consumption by the other members of the family
\n        and public.  They could not have  accepted  the  theory  of
\n        voluntary departure and immoral life of P.W.3, even if that
\n        were true  even.    To  save  their  honour, a version that
\n        pictures P.W.3 as an unwilling victim was essential.    The
\n        theory that no victim would advance a false version of rape
\n        as it would harm her as much or more than it would harm the
\n        indictee  has  no  application  in the facts of the instant
\n        case.\n<\/p>\n
        \t100.  Here was a case where  an  explanation  which
\n        absolves P.W.3 of contumacious behaviour was needed to save
\n        P.W.3 and  her  family.  The hypothesis of the accused that
\n        such theory was pressed  into  service  on  27\/2\/96,  after
\n        P.W.3  returned  on  26\/2\/96  after  due  contemplation and
\n        reflection deserves   cautious   consideration.        That
\n        hypothesis cannot be discounted without careful evaluation.\n<\/p>\n
        \t101.   In such circumstances, we find that there is
\n        no satisfactory proof of absence of consent so far as P.W.3
\n        is concerned or to show that the alleged  rapist  did  have
\n        the knowledge  that  she was not consenting willingly.  The
\n        benefit of doubt shall have to be given to the  accused  so
\n        far  as  the  accusation  for  the offence punishable under
\n        Sec.376(1) IPC is concerned.  Therefore,  giving  them  the
\n        benefit of doubt, the conviction under Sec.376(1) IPC shall
\n        have to be reversed in this case.\n<\/p>\n
        \t102.     But    the    offence   punishable   under
\n        Sec.376(2)(g) IPC, as rightly pointed out  by  the  Special
\n        Public Prosecutor  is on a different pedestal.  The consent
\n        aspect when spoken  to  by  the  victim  gives  rise  to  a
\n        presumption  that occurrence was in the manner that she had
\n        spoken to, going by Sec.114A of the Evidence  Act.    P.W.3
\n        had  stated  that  there  was no consent from her part when
\n        more than one person raped her.\n<\/p>\n
        \t103.  A detailed examination of the evidence  given
\n        by  P.W.3  reveals  that there had been only two occasions,
\n        when there were more than one person simultaneously  inside
\n        the  room  when such alleged intercourse had been committed
\n        on her.  One is in Hotel  Trisea  in  Kanyakumari  and  the
\n        other in  Hotel  Geeth  at Trivandrum.  On the morning when
\n        she reached Hotel Trisea along  with  Dharmarajan,  Accused
\n        Nos.2,  3  and  P.W.8,  Dharmarajan  committed  rape in the
\n        presence of others and Accused  No.3  had  asked  that  she
\n        shall  keep  quiet;  otherwise  she  would have to face the
\n        consequences.  The second occasion is the one when  Accused
\n        Nos.4  and  28  were  found  lying  naked on either side of
\n        P.W.3, by P.W.10 room boy of Hotel  Geeth  who  came  there
\n        raising  objection against three persons occupying a double
\n        room and to supply an extra bed for  them.    There  was  a
\n        wordy quarrel between Accused No.4 and P.W10 at that time.\n<\/p>\n
        \t104.   On  the  first  occasion,  P.W.3 had gone to
\n        Trisea Lodge with Dharmarajan and Accused No.3 from  Theni.
\n        Necessarily, in the light of the facts discussed above, her
\n        theory  of  absence  of  consent cannot be believed as such
\n        without due assurance.  Sec.114A enacts only  a  rebuttable
\n        presumption of   fact   and   not   law.    The  amount  of
\n        circumstances  ncessary  to  rebut  the  presumption  would
\n        certainly vary  from  case to case.  The consent aspect has
\n        already been discussed above and found that  it  cannot  be
\n        held beyond doubt that there was absence of consent.  These
\n        are  the circumstances in rebuttal of the presumption also.
\n        The only corroboration for her evidence  on  gang  rape  is
\n        from P.W.8.   She  was an accused initially.  She was later
\n        transformed as  a  witness.    It  was  held  in  Vemireddy
\n        Satyanarayan Reddy  v.  State of Hyderabad<\/a> (1956 SC 379) as
\n        follows:\n<\/p>\n
         \t“There  is  no  warrant  for  the   extreme
\n                pro-position that if a man sees the perpetration of
\n                a  crime  and  does  not  give information of it to
\n                anyone else, he might well be regarded in law as an
\n                accomplice and that he could be  put  in  the  dock
\n                with the actual criminals.  Indeed, there can be no
\n                doubt  that  the  evidence  of such a man should be
\n                scanned with much caution and  the  Court  must  be
\n                fully  satisfied  that  he  is  a witness of truth,
\n                especially when no other person was present at  the
\n                time to see the murder.\n<\/p>\n
         \tThough  he was not an accomplice, the Court
\n                would  still   want   corroboration   on   material
\n                particulars  as he is the only witness to the crime
\n                and as it would be unsafe to hang the accused (four
\n                in this case) on  his  sole  testimony  unless  the
\n                Court  feels  convinced  that  he  is  speaking the
\n                truth.  Such corroboration need not, however, be on
\n                the  question  of  the  actual  commission  of  the
\n                offence; What the law requires is that there should
\n                be  such  corroboration of the material part of the
\n                story connecting the accused with the crime as will
\n                satisfy  reasonable  minds  that  the  man  can  be
\n                regarded as a truthful witness.”\n<\/p>\n
        It  is  not  therefore  safe  to  implicitly believe P.W.8.
\n        P.W.8 who continued on the array of  accused  was  on  fine
\n        morning  transposed  from the array of accused to the array
\n        of witnesses by PW.97.  From the date of her  arrest  viz.,
\n        9\/4\/96  till 24\/8\/99 when she was deleted from the array of
\n        accused as per Ext.P181 report, she was an  accused.    The
\n        remand  report  submitted  after  her arrest shows that her
\n        statement under Sec.161 Cr.P.C.  was recorded.   But  after
\n        she  was  transposed as a witness it is asserted that there
\n        was no earlier statement recorded from her.  The contention
\n        of the accused that the  prosecution  is  suppressing  that
\n        statement  and  the  present  161  and  164 statements were
\n        obtained by her on the price of her transposition from  the
\n        array of accused to that of witnesses does appear to be one
\n        with force.      One  weak  piece  of  evidence  cannot  be
\n        strengthened by another one of  the  same  type.    So  the
\n        alleged  gang  rape  at  Hotel  Trisea  is not conclusively
\n        proved.\n<\/p>\n
        \t105.  Coming to the second  occasion,  when  P.W.10
\n        found  P.W.3  in  between the two naked males, she had been
\n        hiding her face in the bed lying face  down.    P.W.10  has
\n        spoken so.    Even in spite of quarrel between Accused No.4
\n        and P.W.10, she did not seek any help from  P.W.10  to  get
\n        out  of  the  pains  of  the alleged gang rape committed by
\n        Accused Nos.4 and 28.  Therefore, absence of consent is not
\n        at all discernible from that conduct.  It  is  also  to  be
\n        noted  that  Accused  Nos.4 and 28 had been sleeping inside
\n        the room on either side of P.W.3 without even  locking  the
\n        door from  inside.    That  is evident from what P.W.10 had
\n        spoken to.  According to him,  when  he  knocked  the  door
\n        there  was  no  response  Hence he just opened the door and
\n        found three persons inside the room.  It does not stand  to
\n        commonsense  that two persons will commit gang rape without
\n        even taking the precaution of locking the room.   When  the
\n        room  had  not been locked, it would have been easy for her
\n        to escape or to attract the attention of  others,  so  that
\n        she could be rescued.  The confidence of the male indictees
\n        is indicative  of  the  situation  inside  the room.  It is
\n        certainly not suggestive or confirmative of the  theory  of
\n        absence of  consent.  The presumption available in terms of
\n        Sec.114A of the Evidence Act stands rebutted in so  far  as
\n        the  accused  are  concerned  in  respect  of  the said two
\n        incidents.\n<\/p>\n
        \t106.  The other incidents of gang rape  alleged  by
\n        the  prosecution  is  in the Panchayat Rest House in Kumaly
\n        and elsewhere.  It is true, as spoken  to  by  P.W.3,  more
\n        than one person had sexual intercourse with her in the same
\n        place on  the  same  day.    It  has  also  come out in her
\n        evidence that  more  than  one  person  had  simultaneously
\n        approached her  or  was  brought  to  show  her.    But her
\n        evidence is that there was none other than  the  individual
\n        rapist when  the alleged rape had occurred.  At the risk of
\n        repetition, we must note that according to the prosecution,
\n        more than one person came to her for the purpose of illicit
\n        sexual intercourse.  Till they entered  the  room  and  she
\n        allegedly   signified   her   unwillingness,  they  had  no
\n        intention or common intention of committing  rape  or  gang
\n        rape.   Admittedly,  at  that place, at the time of alleged
\n        rape none else than the alleged rapist was present.   Their
\n        individual  separate  acts  of intercourse become rape only
\n        when  inside  the  room  P.W.3  allegedly   signified   her
\n        unwilligness.   Ingredients  of  common intention to commit
\n        rape or jointness in action are significantly absent.    In
\n        order  to  bring a rape within the definition of gang rape,
\n        as per Explanation-I to Sec.376 IPC a woman must have  been
\n        raped  by  ”  one  or  more in a group of persons acting in
\n        furtherance of  their   common   intention”.      In   such
\n        circumstances,  each  such  person  shall be deemed to have
\n        committed gang rape.  The Special Public Prosecutor is well
\n        justified in contending that there need not be a  completed
\n        act of  rape  by all the companion rapists.  His contention
\n        is supported by the decision reported in  Bhupinder  Sharma
\n        v.   State  of Himachal Pradesh (AIR<\/a> 2003 SC 4684) where it
\n        was held that:\n<\/p>\n
         \t“In  cases  of  gang  rape  the  proof   of
\n                completed act of rape by each accused on the victim
\n                is not   required.    The  statutory  intention  in
\n                introducing Explanation (1) in relation to  Section
\n                372(2)(g)  appears to have been done with a view to
\n                effectively deal with the growing  menace  of  gang
\n                rape.   In  such circumstances, it is not necessary
\n                that the prosecution should adduce clinching  proof
\n                of  a  completed  act  of  rape  by each one of the
\n                accused on the victim or on each one of the victims
\n                where there are more than one in order to find  the
\n                accused  guilty of gang rape and convict them under
\n                Section 376, IPC.  (See Promod Mahto and Others  v.
\n                The State of Bihar (AIR 1989 SC 1475)”.\n<\/p>\n
        But  at  the same time, all the persons must be acting in a
\n        group in furtherance of their common intention, thereby the
\n        rapists must form a group at the time of the commission  of
\n        the offence.\n<\/p>\n
        \t107.   The  Public  Prosecutor submits that rape by
\n        one after another also comes within the definition of `gang
\n        rape’, even if one is not present when the other  committed
\n        rape.   He cited the decision in Pramod Mahto and Others v.
\n        State of Bihar (1990 SCC (Cri) 206) where it was held that:\n<\/p>\n
         “Once it is established  that  the  appellants  had
\n                acted  in  concert  and  entered  the  house of the
\n                victims and thereafter raped  P.W.1  Jaiboon  Nisa,
\n                then  all of them would be guilty under Section 376
\n                IPC in terms of Explanation  I  to  clause  (g)  of
\n                sub-section  (2) of Section 376 IPC irrespective of
\n                whether she had been raped by one or more of  them.
\n                The Explanation in question reads as under:\n<\/p>\n
          \t“Where  a  woman is raped by one or
\n                        more  in  a  group  of  persons  acting  in
\n                        furtherance of their common intention, each
\n                        of  the  persons  shall  be  deemed to have
\n                        committed gang rape within the  meaning  of
\n                        this sub-section.”\n<\/p>\n
        This dictum does not in any way support his contention.\n<\/p>\n
        \t108.   A measure of jointness in action and forming
\n        of a single group is essential.  It was held by the Supreme
\n        Court in Ashok Kumar v.  State of Haryana (AIR 2003 SC 777)
\n        that:\n<\/p>\n
         \t“Charge  against  the  appellant  is  under
\n                S.376(2)(g), IPC.  In order to establish an offence
\n                under  S.376(2)(g),  IPC,  read  with Explanation I
\n                thereto, the prosecution must  adduce  evidence  to
\n                indicate  that  more than one accused hadf acted in
\n                concert and in such an  event,  if  rape  had  been
\n                committed  by  even  one,  all  the accused will be
\n                guilty irrespective of the fact that she  had  been
\n                raped  by  one  or  more  of  them  and  it  is not
\n                necessary for the prosecution to adduce evidence of
\n                a completed act of rape by each one of the accused.
\n                In other words, this provision embodies a principle
\n                of  joint  liability  and  the  essence   of   that
\n                liability  is  the  existence  of common intention;
\n                that common  intention  presupposes  prior  concert
\n                which   may  be  determined  from  the  conduct  of
\n                offenders revealed during the course of action  and
\n                it  could  arise and be formed suddenly, but, there
\n                must be meeting of minds.  It is not enough to have
\n                the same intention independently  of  each  of  the
\n                offender.   In  such  cases, there must be criminal
\n                sharing marking out a ccertain measure of jointness
\n                in the commission of offence.”\n<\/p>\n
        The person acting in a group in furtherance of their common
\n        intention is distinguishable from  several  persons  coming
\n        with  the  similar  intention  of having sexual intercourse
\n        with a girl individually.  Then there will not  be,  acting
\n        in  furtherance  of common intention by group of persons as
\n        enjoined by the Explanation I to Sec.376.   Even  going  by
\n        the  evidence  of  P.W.3,  persons  came  together with the
\n        similar intention and approached her for intercourse.   But
\n        at  the time of intercourse, as spoken to by her, there was
\n        presence of only one.  Even if she expressed  unwillingness
\n        to that person who had intercourse to make such intercourse
\n        amount  to  rape, it cannot be said that the person waiting
\n        outside for his turn of intercourse is a party joined in  a
\n        group  in  the  commission of the offence of rape allegedly
\n        committed by the person already inside.  There was  no  act
\n        in  furtherance  of  common intention by the person who was
\n        waiting out side who did not know that  the  girl  had  not
\n        consented.   If at all there was any intention, it was only
\n        immoral similar intention of having intercourse and  not  a
\n        culpable common intention to commit rape.\n<\/p>\n
        \t109.   Thus  there  is  no  proof  of any gang rape
\n        committed  by  any   of   the   accused   in   this   case.
\n        Consequently, the conviction in that regard shall also have
\n        to be set aside.\n<\/p>\n
        \t110.    There   is   also   an  allegation  against
\n        Dharmarajan that he  had  robbed  PW.3  of  her  money  and
\n        ornaments.   He  was found guilty of the offence punishable
\n        under Sec.392 IPC.  Even going by the  evidence  of  P.W.3,
\n        she was alone in the room on several occasions including in
\n        Metro  Lodge  at  Kottayam, Anand Lodge at Ernakulam and in
\n        the house of Accused No.16 at Vanimel in Calicut.    If  at
\n        all  he  had  an  intention of taking away the jewellery or
\n        cash from the hands of P.W.3, it was easy for him  to  grab
\n        it when  she  was alone with him there.  On the other hand,
\n        the case of P.W.3  is  that  she  had  been  taken  to  the
\n        jewelers  and  on  the way while in autorickshaw and in the
\n        jewellery shop she was forced to part  with  the  jewellery
\n        like ear  stud,  ear drops, silver anklets etc.  That story
\n        cannot be believed.  If at all Dharmarajan had an intention
\n        to rob her, he had ample opportunity to do  so  in  several
\n        places  at Kottayam, Ernakulam and at Vanimel while she was
\n        alone in a room with him.  The idea of  taking  the  victim
\n        also  to  the  jewellers and threatening and compelling her
\n        there to part with ornaments does  not  inspire  us.    The
\n        allegation of robbery is thus inherently improbable and not
\n        convincing.  Therefore, the conviction under Sec.392 IPC in
\n        so far as Dharmarajan is concerned also cannot be stated to
\n        be justified.    The  evidence of P.Ws.34 and 35, the owner
\n        and the salesman in the  jewelleries  concerned  where  the
\n        ornaments of P.W.3 had been sold is also not helpful so far
\n        as the  prosecution  is  concerned.    It will, at best, be
\n        revealed from their evidence that P.W.3 was also a party to
\n        give away the ornaments  to  Dharmarajan  for  being  sold.
\n        What  are  recovered are only M.Os.19 and 20 ingots and not
\n        the ornaments  allegedly  taken  away.    Necessarily   the
\n        conviction  under Sec.392 IPC is not justified and it is to
\n        be reversed.\n<\/p>\n
        \t111.  Now we will  come  to  other  offences  under
\n        Secs.366A and  372 IPC relating to sex trade.  The offences
\n        under Secs.372 and 373 IPC have been  alleged  against  all
\n        the accused  in  the  1st  case.  But all of them have been
\n        acquitted of the offences under the said counts.  No appeal
\n        has been preferred by the State against  the  acquittal  of
\n        the  35 accused in S.C.No.187\/99 of the offences punishable
\n        under Secs.372 and 373  relating  to  sex  trade.    So  we
\n        cannot,  in  the absence of an appeal by the State, examine
\n        whether the said 35 persons are guilty of  the  offence  of
\n        sex trade punishable under Sections 372 and 373 IPC.\n<\/p>\n
        \t112.  Accused No.1 in the first case alone had been
\n        convicted under  Sec.366A IPC principaly.  Accused Nos.1 to
\n        8, 12, 14 and 17 had been convicted for the  offence  under
\n        Sec.120B read  with  Sec.366A  IPC.    The  conspiracy  has
\n        already been  found  against  the  prosecution.     Placing
\n        reliance  on  the  indications  regarding  letter of P.W.3,
\n        involvement of accused No.1 has been ruled out as he had no
\n        role in the alleged conspiracy.    Even  according  to  the
\n        prosecution,  he  had  no role at all except on the initial
\n        day to kidnap the girl.  Kidnapping is also  found  against
\n        the prosecution.  So there arises no question of commission
\n        of  the offence under Sec.366A by accused No.1 in the light
\n        of the prosecution case itself.  Therefore, the  conviction
\n        of  Accused No.1 under Sec.366A IPC and Accused Nos.1 to 8,
\n        12, 14 and 17 for the offence of conspiracy to commit  that
\n        offence cannot be sustained.\n<\/p>\n
        \t113.    Even   going   by   the  admitted  case  of
\n        Dharmarajan in his Sec.313 statement, P.W.3 had come in his
\n        hands at the park in Ernakulam.    Thereafter,  as  further
\n        admitted  by  him,  he had taken her from the park to Anand
\n        Lodge in Ernakulam, to Palakkad, to Vanimel, to Kumali  and
\n        to Theni.    During  the  journey and stay at those places,
\n        there had been sexual intercourses by several  with  P.W.3.
\n        Admittedly,  P.W.3  was  below  the age of 18 years and was
\n        therefore a minor.  P.W.3 has also  deposed  that  she  had
\n        been  moved  from  place  to  place and subjected to sexual
\n        intercourse.  Dharmarajan has no case that she  is  in  any
\n        way related  to  him.  She did not and could not have moved
\n        from place to place on her own.  So, in order to  take  the
\n        girl   with  him,  there  must  have  been  inducement;  in
\n        whatsoever form.  Thus, it is clear from  the  evidence  of
\n        P.W.3  and  as  admitted  by  Dharmarajan that he had taken
\n        P.W.3 from place to place.  At such  places  she  had  been
\n        subjected to  illicit intercourse.  She was thus taken from
\n        place to place knowing that she was likely to be  used  for
\n        such purpose.    The intercourse, the others had with P.W.3
\n        was illicit intercourse.  Thus, going by  the  evidence  of
\n        P.W.3   and   in   the  light  of  the  admitted  stand  of
\n        Dharmarajan, it has  been  conclusively  and  beyond  doubt
\n        proved  that  the  offence  under  Sec.366A  IPC  has  been
\n        committed by Dharmarajan.\n<\/p>\n
        \t114.  It has also come out in the evidence of P.W.3
\n        that several other persons did have inter course with  her.
\n        This  had happened and could only happen if Dharmarajan had
\n        disposed her for that purpose.  Otherwise she will not come
\n        in the hands of others for such intercourse.  She  was  not
\n        married to   any  one  of  them.    So  those  are  illicit
\n        intercourses coming within Explanation 2  to  Sec.372  IPC.
\n        Thus,  it  is  clear  that  Dharmarajan  has  committed the
\n        offence punishable under Sec.372 IPC as well.\n<\/p>\n
        \t115.  It is submitted by  counsel  for  Dharmarajan
\n        that  there  was  no  monetary  transaction  to  reveal the
\n        offence under Sec.372 IPC and there is no evidence to  show
\n        that PW.3 had been sold for money or let to hire for money.
\n        Apart  from  the  facts  admitted  by him, it is clear that
\n        Dharmarajan had taken her to several  places  including  to
\n        Kanyakumari  and thereafter from the house of Accused No.38
\n        to Kuravilangadu.  Exts.P59 and P59(a) and the evidence  of
\n        P.W.47 show that Dharmarajan has taken P.W.3 to Hylux Lodge
\n        in Palghat.    Q.8  identified by P.W.76 handwriting expert
\n        corroborates this aspect.  Exts.P62  and  62(a)  prove  his
\n        presence with  P.W.3 at Indira Lodge, Kambam.  This is duly
\n        fortified by Q.22 and 22(a).  P.W.50 the Manager of Thottam
\n        Lodge, Muvattupuzha,  testifies  his  presence  with  P.W.3
\n        there.   Exts.P74  and  74(a)  fortified  by Q.29 and 29(a)
\n        satisfactorily prove this  fact.    P.W.4  Receptionist  in
\n        Aroma Lodge identifies Dharmarajan as the son-in-law of one
\n        among  their permanent customers and that he had been there
\n        with a girl.  P.W.3 deposes that she had been taken  there.
\n        Thus,  it is proved beyond doubt that he had taken P.W.3 to
\n        several places.  There is also  evidence  that  during  the
\n        sojourn there had been intercourses with her by several and
\n        such intercourses are illicit intercourses so far as a girl
\n        like P.W.3  under the age of 18 years was concerned.  There
\n        is evidence from the mouth of P.W.3 herself.   It  is  also
\n        the  admitted  case  of Dharmarajan that she had been taken
\n        from place to place.  This was done  knowing  that  it  was
\n        likely  that  she  would be seduced and offered for illicit
\n        intercourse with others.  Accused Dharmarajan can, in these
\n        circumstances,  safely  be  held  to  have  committed   the
\n        offences  punishable under Secs.366A and 372 IPC subject of
\n        course to the decision on the  question  of  unfairness  in
\n        investigation\/ trial and consequent prejudice.\n<\/p>\n
        \t116.   We  have  not  in  detail  adverted  to  the
\n        evidence of P.W.3 about the details of her movements  after
\n        she  left  the  hostel  on 16\/1\/96 and reached her father’s
\n        office on 26\/2\/96.   We  are  satsified  broadly  that  her
\n        evidence  regarding her movements and the persons with whom
\n        she had  intercourses   need   not   be   doubted.      The
\n        Investigators have  cross checked such movements.  Inasmuch
\n        as we have conceded the benefit of doubt to  the  indictees
\n        on  the  question  of  consent  we  are  not  proceeding to
\n        consider the evidence in detail.  We do take  note  of  the
\n        contentions  raised by some of the accused that there is no
\n        sure substantive evidence of identification  in  court  and
\n        that  the  learned  Sessions Judge has improperly chosen to
\n        place reliance on evidence of identification  in  the  Test
\n        Identification   parade   in  the  absence  of  substantive
\n        evidence of identification.   Contentions  have  also  been
\n        raised  by  the accused regarding the propriety of the Test
\n        Identification parade  held.    In  view  of  our  findings
\n        rendered  earlier,  we  are  not  embarking  on  a detailed
\n        discussion on those aspects.\n<\/p>\n
        \t117.   We  shall  now  consider   the   contentions
\n        regarding   infraction  of  procedural  safeguards  in  the
\n        interests of fair trial and the consequent  prejudice  that
\n        has resulted.    In  this  regard  it  is  contended by the
\n        accused including Dharmarajan that the  prosecution  having
\n        not furnished to the accused the entire statements given by
\n        P.W.3 to the Investigating Officers, there was prejudice in
\n        moulding their  defence.  Even according to the prosecution
\n        the statements of  P.W.3  recorded  by  P.W.93  on  8\/3\/96,
\n        10\/3\/96  and  15\/3\/96  which  in any view of the matter the
\n        prosecution is bound to produce and furnish compies had not
\n        been  produced  in  court  initially  as   enjoined   under
\n        Sec.173(5) Cr.P.C.    and copies thereof were not furnished
\n        to the  accused  as  enjoined  under  Sec.207(iii)  Cr.P.C.
\n        According  to  the accused, two other statements from P.W.3
\n        were also not furnished to them.   This  disabled  them  to
\n        mould  their  defence  from the initial stage, before P.W.3
\n        faced cross-examination.  It may  be  true  that  the  said
\n        statements  had  been produced belatedly in the first case.
\n        That did not wipe off the prejudice already occasioned,  it
\n        is submitted.    Though produced, copies were not furnished
\n        to them, it is further contended.    Certainly,  these  are
\n        contentions which have to be considered at length.\n<\/p>\n
        \t118.   The  decision  cited  by the accused in this
\n        regard reported in Kottaya  v.    Emperor  (AIR  (34)  1947
\n        P.C.67) fortifies  this  contention.    When the statements
\n        relied on by the prosecution are not made available to  the
\n        accused,  “an  inference,  which is almost irresistible, of
\n        prejudice to the accused” arises.    The  counsel  for  the
\n        accused has also relied on the decision of a Division Bench
\n        of this  Court reported in Murali v.  State of Kerala<\/a> (2003
\n        (3) KLT 226) where this Court had held that  non-supply  of
\n        Sec.161  statement  obtained  from the occurrence witnesses
\n        will cause prejudice.  At the same time, the learned Public
\n        Prosecutor has relied on the decision  reported  in  Sunita
\n        Devi v.  State of Bihar (AIR 2004 SCW 7116) to substantiate
\n        that every non-supply shall not be reckoned as amounting to
\n        prejudice.   There  must be proof of miscarriage of justice
\n        as held in by a Full Bench of  this  Court  in  Rugmini  v.
\n        State of Kerala (1986 KLT 1356).\n<\/p>\n
        \t119.   In  the decision of the Privy Council it had
\n        been held that the non-supply of certain statements  relied
\n        on  by  the  prosecution  will  result  in  an irresistible
\n        inference of prejudice to the accused.  There cannot be two
\n        opinions on this proposition of law.  It has also been held
\n        by a Division Bench of this Court in Murali’s case to which
\n        one among us (Abdul Gafoor,J.) was party that non-supply of
\n        the document would result in prejudice.  But that  decision
\n        has to  be  read  in  the  light of the facts therein.  The
\n        facts in Murali’s case were that P.W.2 deposed that he  had
\n        seen  the  injury  being  inflicted  by  the accused on his
\n        step-father, the deceased.   But  some  how  or  other  the
\n        accused  got  smell about an earlier statement made by that
\n        witness to the police wherein he had not stated that he had
\n        seen the occurrence.  The copy of the  statement  available
\n        with  the officer superior to the Investigating Officer was
\n        summoned to  be  produced.    P.W.23,   the   Investigating
\n        Officer,  thereupon deposed that he had recorded an earlier
\n        statement from P.W.2, wherein he had not stated that he had
\n        seen the occurrence.  It was also revealed that P.W.23  had
\n        counselled  P.W.2 and obtained a different statement as was
\n        spoken to before the trial court.  Thereafter, the original
\n        of the the earlier statement given by P.W.2 was  torn  off.
\n        It  was  in the above circumstances P.W.23 admitted that he
\n        had obtained statement of P.W.2 wherein  P.W.2  had  stated
\n        that he  had not seen the occurrence.  It had also come out
\n        in that case that P.W.4 had come to the scene of occurrence
\n        and had seen the accused waiting there.  After he had gone,
\n        he heard the cry and rushed back to the scene of occurrence
\n        to see the deceased lying injured and the  accused  running
\n        away with  weapon.    It had also come out in evidence that
\n        Sec.161 statement recorded from P.W.4 on  13\/7\/96  had  not
\n        been produced  before the court below.  The court could not
\n        guess what really he had told to  the  police  on  13\/7\/96.
\n        Equally so  was  the  accused.  Therefore, in that case the
\n        version  of  both  the  occurrence  witnesses  was  not  in
\n        conformity  with the statements that had been given earlier
\n        to the Investigating Officer, as admitted by P.W.23 in that
\n        case.  It is in that situation that the  non-production  or
\n        non-furnishing  of  copies  of  Sec.161 statements recorded
\n        from the only occurrence witnesses were found to be causing
\n        prejudice in a case of murder.    Necessarily  that  dictum
\n        cannot  ipso  facto apply to this case in toto to hold that
\n        there was total prejudice.  In the recent decision  of  the
\n        Supreme Court  reported  in  Sunita Devi v.  State of Bihar
\n        (AIR 2004 SCW 7116) the Apex Court has made it clear that:\n<\/p>\n
         “The documents in terms of Sections 207 and 208 are
\n                supplied to make the accused aware of the materials
\n                which are sought to be utilized against him.    The
\n                object  is  to enable the accused to defend himself
\n                properly.  The idea behind the supply of copies  is
\n                to  put him on notice of what he has to meet at the
\n                trial.  The effect of non-supply of copies has been
\n                considered by this Court in Noor Khan v.  State  of
\n                Rajasthan (AIR<\/a> 1964 SC 286) and Shakila Abdul Gafar
\n                Khan (Smt.) v.  Vasant Raghunath Dhoble and Another<\/a>
\n                (2003 (7) SCC 749).  It was held that non-supply is
\n                not necessarily  prejudicial  to  the accused.  The
\n                Court has to give  a  definite  finding  about  the
\n                prejudice or otherwise.”\n<\/p>\n
        It  was  thus  held  that non-supply of any document is not
\n        necessarily prejudicial to the accused always.   The  court
\n        has  to  give  a  definite  finding  about the prejudice or
\n        otherwise occasioned.  It is, in these circumstances,  that
\n        we  have  to  consider  the effect of non-supply or belated
\n        supply of the copies of the statements from P.W.3.\n<\/p>\n
        \t120.     Non-production\/non-furnishing    of    the
\n        statements taken  from  PW.3  under Section 161 Cr.P.C.  is
\n        the reason for  prejudice,  according  to  the  appellants.
\n        Altogether,  ten  statements  were  allegedly obtained from
\n        PW.3 – one by PW.82, three by PW.93, two by PW.91  and  two
\n        more statements by PW.97.  Apart from these admitted eight,
\n        it  is  also  admitted  by the prosecution that a statement
\n        stated to be taken from PW.3 on  28.2.1996  by  PW.95  also
\n        forms part  of  the  case  diary.    But,  according to the
\n        prosecution, this is not a truly recorded one.    So,  they
\n        disown it.      This   statement,   for   the   purpose  of
\n        consideration of the contention regarding  prejudice,  will
\n        hereafter be referred to as the “disowned statement”.\n<\/p>\n
        \t121.    It  is  alleged  by  the  counsel  for  the
\n        appellant\/accused that on 27.2.1996, a statement  had  been
\n        taken  by  PW.82  from PW.3 as transcribed by DW.10, who is
\n        also DW.6 in the second case.  It is submitted that this is
\n        the real statement obtained by PW.82 from PW.3 and not  the
\n        one now  forming  part  of  the  case  records.    But  the
\n        prosecution does not admit such a statement.  According  to
\n        them,  the  statement  recorded  by  PW.82  is  the one now
\n        available in the case records.  We will, for  the  sake  of
\n        convenience, to discuss the aspects on this point, describe
\n        the  statement  admittedly taken by PW.82, now forming part
\n        of the case records, as the `admitted  statement’  and  the
\n        statement  claimed  by  the  appellants as taken originally
\n        from  PW.3,  which  is  disputed  by  the  prosecution,  as
\n        “Ext.C2”, marking   it   so.     Ext.C2  is  the  “disputed
\n        statement.”\n<\/p>\n
        \t122.  It is the contention of the  appellants  that
\n        in  order to move a bail application on behalf of Regi, the
\n        4th accused, one among  his  friends  had  approached  some
\n        political  leaders to obtain certain case records, so as to
\n        instruct his advocate.  In that attempt, his friend came in
\n        contact with DW.1 in the second case and he had obtained  a
\n        photo  copy  of  Ext.C2 statement of PW.3 then available in
\n        the case records with the help of a police constable.    It
\n        was  produced  in the court during trial, but the court did
\n        not allow it to be admitted in evidence.  Thereupon, it  is
\n        common  case that, that issue had come up for consideration
\n        before this court and this court in Dharmarajan v.    State
\n        of Kerala<\/a> {2002(2) KLT 161} held as follows:\n<\/p>\n
         “The  impugned order cannot be sustained and is set
\n                aside.  If the learned Sessions Judge is  satisfied
\n                on  the basis of the materials available before him
\n                in the course of trial that the  statement  of  the
\n                prosecutrix,  alleged  to have been recorded by the
\n                investigating  officer  (ASI-P.K.Balakrishnan)   on
\n                27.2.1996, is in fact recorded by him personally or
\n                at  his  dictation  or  direction by another police
\n                officer, effective opportunity should be  given  to
\n                the  accused\/revision  petitioner  after  supplying
\n                copy of that statement to test the veracity of  the
\n                evidence given by her by allowing him to contradict
\n                her  with  that  previous  statement  in the manner
\n                provided under S.145 of the  Evidence  Act  drawing
\n                attention of her to that part of the statement.”\n<\/p>\n
        In the light of this pronouncement, it was the bounden duty
\n        of  the court below to examine as to whether such statement
\n        had really been recorded by PW.82.  When such a dispute had
\n        arisen, necessarily, it goes deep  into  the  root  of  the
\n        case.   Any  court  is bound to examine it at the threshold
\n        itself, even without any direction.   Accordingly,  in  the
\n        second  case,  it  was specifically dealt with and found by
\n        the court below that no such Ext.C2  statement  had  really
\n        been  recorded  at the instance of PW.82 from PW.3 and that
\n        there  was  no  occasion  for  DW.10  to  transcribe   that
\n        statement.   The  decision in that regard also is very much
\n        assailed in these appeals.\n<\/p>\n
        \t123.  It has also come out  that  three  statements
\n        recorded  by PW.93 Circle Inspector, Devicolam from PW.3 on
\n        8.3.1996, 10.3.1996 and 15.3.1996 were also not produced in
\n        the court or furnished to the accused in  the  first  case.
\n        Of course, later, on a petition and after hearing, based on
\n        an order, those three statements were produced in court far
\n        belatedly,  after  the examination of PW.3 was over in that
\n        case.   Those  statements  will  be  referred  to  as   the
\n        statements  dated  8.3.1996, 10.3.1996 or 15.3.1996, as the
\n        case may be, even though the second  among  them  does  not
\n        bear any  date.    Even  in the second case, those were not
\n        initially produced by the prosecuting agency.  The  accused
\n        Dharmarajan had to move a petition for production and it is
\n        based  on  an order from the court, those had been produced
\n        and  made  available  before  the   commencement   of   the
\n        examination of PW.3, who was examined as PW.1 in that case.
\n        Thus,  Ext.C2,  disowned statement and the statements dated
\n        8.3.1996, 10.3.1996 and 15.3.1996 are the  five  statements
\n        not  produced  or  furnished  to  the  accused resulting in
\n        alleged prejudice.\n<\/p>\n
        \t124.  So, we have now to consider which  among  the
\n        two  statements,  stated  to  be recorded on questioning by
\n        PW.82,  is  the  real  statement  recorded  from  PW.3   on
\n        27.2.1996.   For  this  purpose,  we have to go through the
\n        case diary and ascertain  the  contents  of  the  “admitted
\n        statement”,  notwithstanding  the  provision  contained  in
\n        Section 162 Cr.P.C., but keeping in mind that it should not
\n        be made use of as evidence in this case.  At the same time,
\n        as the copies of Ext.C2 are with either party and as either
\n        party has  knowledge  about  its  contents  and  as  it  is
\n        referred  to in the impugned judgment, the contents thereof
\n        shall  also  be  dealt  with,  keeping  in  mind  the  same
\n        precaution.   That  was  why  we refrained from considering
\n        this aspect earlier in this judgment, while discussing  the
\n        evidence adduced.\n<\/p>\n
        \t125.   To  substantiate  that  Ext.C2  is  the real
\n        statement recorded from PW.3 by PW.82, several aspects  are
\n        pointed out by the appellants.  First, it is submitted that
\n        a  copy  of  this was obtained on behalf of the accused, by
\n        DW.1  for  the  purpose  of  moving  a  bail   application.
\n        Secondly, it is submitted that when the case diary was made
\n        available  to  the District and Sessions Judge, Thodupuzha,
\n        during the hearing of  that  bail  application,  the  Judge
\n        seems  to have examined this statement given by the victim.
\n        This is evident from the reference to the prosecution  case
\n        made mention of in the bail order Ext.D14, which is Ext.D29
\n        in the  second case.  The reference to the statement of the
\n        victim therein has similarity to the contents contained  in
\n        Ext.C2.   Thirdly  it is submitted that Ext.X2 crime ledger
\n        kept by PW.95 shows that the pages  relating  to  the  case
\n        diary  mentioned  in Ext.X2 correspond to the number of the
\n        pages of Ext.C2,  rather  than  the  “admitted  statement”.
\n        Fourthly, it is submitted that Ext.C2 refers to one Sivaji,
\n        who is  alleged  to  have  molested the victim.  But in the
\n        admitted statement, no such name is appearing.    The  name
\n        “Stephenji” appears   therein.     Linking  Ext.C2  to  the
\n        statement  dated  10.3.1996  recorded  by  PW.93,   it   is
\n        submitted  that  PW.3  had  clarified to PW.93 that she had
\n        stated that:\n<\/p>\n
         ”\n<\/p>\n
         \t\t\t\t\t.”\n<\/p>\n
         (I have stated to police as Stephenji.  I have  not
\n                stated as Sivaji).\n<\/p>\n
        This  portion  of  that  statement  has come in evidence as
\n        Ext.D2(b).  If PW.3 had to say so to  PW.93  on  10.3.1996,
\n        there  must  have  been a reference to Sivaji in any of her
\n        earlier  statements,  so  that   PW.93   had   to   get   a
\n        clarification.   On  the basis of Ext.D2(b) it is submitted
\n        that the existence of Ext.C2 is probabilised.  Fifthly,  it
\n        is  also  submitted referring to the evidence of the victim
\n        who was examined as PW.1 in the second case  that  she  had
\n        deposed  in  the court below that Dharmarajan had taken her
\n        to the Park in Ernakulam before  they  checked  into  Anand
\n        Lodge at  Ernakulam,  on  17.1.1996.  Ext.C2 also refers to
\n        the visit to the park along with Dharmarajan  on  the  said
\n        day.   There  was  no reference to the visit to the park in
\n        any statement including the admitted one recorded by PW.82.
\n        Sixthly, it is contended by the appellants that Ext.C2 also
\n        contains a version by the victim that she  had  gone  along
\n        with Dharmarajan for a Hindi movie, after checking into the
\n        Anand Lodge,  Ernakulam at about 6.45 P.M.  To substantiate
\n        this, Dharmarajan had  attempted  to  produce  a  newspaper
\n        dated  17.1.1996  to  show  that a Hindi film “Gambler” was
\n        being exhibited in one among  the  theatres  in  Ernakulam.
\n        Almost similar  name  is  referred  to  in Ext.C2.  But the
\n        court did not permit due proof of the said  news  paper  by
\n        summoning  its  circulation  manager, on the ground that it
\n        was a protracting tactic adopted by the  accused.    It  is
\n        submitted that this aspect is referred to, to show that the
\n        accused  Dharmarajan had taken effective steps to prove the
\n        real existence of Ext.C2 referring to this movie aspect  as
\n        well.\n<\/p>\n
        \t126.    Existence   of   Ext.C2  is  sought  to  be
\n        substantiated by pointing out reference to  certain  minute
\n        details  like  name  of one class mate of PW.3 viz., Little
\n        Flower, names of her teachers viz., Sister Linet and Sister
\n        Andrissamma, route to the house of Accused No.39 where PW.3
\n        had stayed etc.  which were known to  PW.3  alone  at  that
\n        time.   So Ext.C2 could not have been recorded without PW.3
\n        disclosing those facts known to her alone.   These  details
\n        were not available in any other records.\n<\/p>\n
        \t127.   The existence of Ext.C2 is also sought to be
\n        substantiated by  referring  to  the  “disowned  statement”
\n        stated to   be   recorded  by  PW.95,  as  well.    It  is,
\n        admittedly, a part of the case records.  That statement has
\n        been recorded on the next day i.e.  28.2.1996.    There  is
\n        much  dispute  from  the  side  of  prosecution  about  the
\n        veracity of the `disowned statement’, as according to them,
\n        it was one manufactured by PW.95 to screen off  several  of
\n        the accused.    `Disowned  statement’  also  refers  to one
\n        `Vikasini’,  with  whom  PW.3   had   been   entrusted   by
\n        Dharmarajan for  a  stay for four days.  The very same name
\n        appears in Ext.C2 in the same context.   Referring  to  the
\n        `disowned  statement’,  it  is  submitted that existence of
\n        Ext.C2 is thus fortified.  The admitted statement does  not
\n        refer to  Vikasini.    Instead, it refers to that person as
\n        “Vilasini”.  If Ext.C2  was  not  there  and  the  admitted
\n        statement  was  the real statement, the name Vikasini could
\n        not  have  crept  into  the  disowned  statement,   it   is
\n        contended.\n<\/p>\n
        \t128.   It  is further submitted that the contention
\n        of the prosecutor that there was no occasion for P.W.95  to
\n        record  `disowned  statement’  is  belied  by  Ext.X 11(a),
\n        weekly diary of PW.95, which shows that the victim had been
\n        questioned on 28.2.1996 at about 10.30 A.M.  Ext.X 11(a) is
\n        a document duly kept in the normal course of duty.    There
\n        is no  reason  to disbelieve it.  In her evidence PW.3 also
\n        admits that she had been questioned by PW.95.  It  is  also
\n        evident  from Ext.X 11(a) that PW.3 had been taken by PW.95
\n        to PW.73, the doctor, for medical examination at 1 P.M.  on
\n        that day.  PW.3 had also deposed  before  the  court  below
\n        that  she had come to the Munnar Police Station by about 11
\n        O’ clock.  Necessarily, there was much probability  of  her
\n        being  questioned  by  PW.95,  who  had admittedly taken up
\n        investigation of the case by that time.  The entry in Ext.X
\n        11(a) that she had been questioned by him at 10.30 A.M.  on
\n        that day becomes more probable in the light of the evidence
\n        on record as discussed above.\n<\/p>\n
        \t129.   When  PW.3  had  admitted  that  PW.95   had
\n        questioned   her,   necessarily,  facts  revealed  in  that
\n        questioning, in the normal course, as in the  case  of  any
\n        investigating  officer,  must  have been reduced to writing
\n        based on the note he may prepare.  It is also spoken to  by
\n        PW.3 that  she came to the station at 11 A.M.  and that she
\n        had been taken to the doctor from the  station  at  1  P.M.
\n        Necessarily,   there  was  sufficient  time  available  for
\n        questioning PW.3 and to ascertain the details from her.  As
\n        admitted by the prosecution, PW.95 had been entrusted  with
\n        the investigation  of the case by that time.  It is also to
\n        be noted that an  investigating  officer  like  the  Circle
\n        Inspector who takes up investigation immediately would have
\n        questioned  the  victim  in the normal circumstances and in
\n        the normal course of his duty.  It  is  also  to  be  noted
\n        that,  even  according  to PW.93, the investigating officer
\n        who succeeded PW.95, the `disowned statement’ was available
\n        in the case diary when he had taken up investigation of the
\n        case, on transfer from PW.95  on  8.3.1996.    Thus,  these
\n        details  are  sufficient  enough  to show that the disowned
\n        statement dated 28.2.1996 is one duly  recorded  by  PW.95,
\n        the  investigating officer in this case at that time in the
\n        normal conduct of  the  investigation  and  there  was  all
\n        probabilities  that it has been recorded after the admitted
\n        questioning of PW.3 on 28.2.1996, it is submitted.\n<\/p>\n
        \t130.  It is also  submitted  to  substantiate  this
\n        point, that Accused No.28, George Cherian was implicated as
\n        an accused  only  by  Ext.P157 report dated 21.3.1996.  His
\n        name appears in the “admitted statement”  dated  27.2.1996.
\n        Allegedly  based  on  the  `admitted  statement’, a list of
\n        accused was submitted to the  court  on  11.3.1996  as  per
\n        Ext.P166 report.  But that report does not contain the name
\n        of Accused   No.28  George  Cherian.    Had  the  `admitted
\n        statement’ been in the case records, necessarily, there was
\n        no reason for not including the name of  Accused  No.28  in
\n        Ext.P166 report  dated  11.3.1996.   Absence of the name of
\n        Accused No.28 in the list of eighteen accused mentioned  in
\n        Ext.P166  shows  that  the  victim  had  not  disclosed his
\n        complicity on that date.   There  is  yet  another  report,
\n        Ext.P121 dated 18.3.1996 adding 8 more accused.  There also
\n        his name  was  not included.  Such non inclusion of Accused
\n        No.28 at that time is more probable on  the  basis  of  the
\n        contents  of  Ext.C2  and the `disowned statement’, both of
\n        which did not refer at all  about  the  complicity  of  A28
\n        George Cherian.    So,  the  non-inclusion  of  the name of
\n        Accused 28 in Ext.P166  report  or  in  the  latter  report
\n        Ext.P121   dated   18.3.1996  suggests  that  the  admitted
\n        statement was not  available  in  the  case  records  until
\n        18.3.1996, the counsel contends.\n<\/p>\n
        \t131.   It  is  further submitted that the statement
\n        admittedly  recorded  by  PW.93  from  PW.3  on   10.3.1996
\n        (undated) shows that she had spoken to him as follows:\n<\/p>\n
         ”\n<\/p>\n
        \t\t\t\t\t\t\t\t\t\t.”\n<\/p>\n
         (The  ASI  and  CI  of  Munnar station had taken my
\n                statement.   What  I  have   stated   therein   are
\n                correct).\n<\/p>\n
        This  has been duly confronted to PW.3 and marked as Ext.D2
\n        in the second case and  PW.93  had  admitted  that  he  had
\n        recorded the  said statement, as spoken to by PW.3.  If she
\n        had to say that she had given a statement to ASI and CI  of
\n        Munnar  Station,  there must have been a statement taken by
\n        the C.I.  of Munnar Station, who is none other than  PW.95.
\n        The  only  statement of PW.3 recorded by PW.95 available in
\n        the case diary is the  `disowned  statement’.    Therefore,
\n        that  also  probabilises  the  existence  of  the `disowned
\n        statement’, it is submitted.   It  was  unlikely  that  the
\n        Munnar  CI  referred  to  in  Ext.D2 could be PW.93 who was
\n        himself recording that  statement.    That  explanation  is
\n        improbable, artificial and unworthy of acceptance.\n<\/p>\n
        \t132.   It is further submitted that the prosecution
\n        is now introducing a statement dated 8.3.1996  said  to  be
\n        taken by PW.93 from PW.3 which reveals as follows:\n<\/p>\n
         ”\n<\/p>\n
         \t\t\t\t\t.”\n<\/p><\/blockquote>\n
         \t\t\t\t\t(I have not
\n                given a statement as now read over to me to the CI,
\n                Munnar.   CI  Munnar  had  never taken any detailed
\n                statement from me, nor  had  he  questioned  me  in
\n                detail).\n<\/p><\/blockquote>\n
        This  statement,  admittedly taken by PW.93, from PW.3 does
\n        not reveal anything more.    Necessarily,  any  inquisitive
\n        investigating  officer, with an urge to find out the truth,
\n        should have  questioned  her  further  then  and  there  to
\n        ascertain  what  were the details that she had (or had not)
\n        spoken  to  PW.95,  Circle  Inspector,  Munnar,   when   he
\n        questioned her.    This  aspect  is  not  seen  pursued  on
\n        8.3.1996 or at any time thereafter by PW.93 or any  of  the
\n        later three   investigating   officers.    That  is  indeed
\n        strange.  If such a statement was really recorded, it  must
\n        have  occurred  to  PW.93  that  his  predecessor PW.95 was
\n        guilty of gross indiscretion.    No  investigating  officer
\n        worth  his  salt  would  have  left  matters  there without
\n        subjecting PW.3 to closer  questioning  to  ascertain  what
\n        portion  of  the  disowned statement was true and what not.
\n        In this  regard,  our  attention  is  drawn  to  the  three
\n        statements  produced  by  the  prosecution  as of 8.3.1996,
\n        10.3.1996 and 15.3.1996 and pointed out that the  statement
\n        recorded  on  8.3.1996  contains the date, that recorded on
\n        10.3.1996 does not contain any date, whereas that  recorded
\n        on 15.3.1996  is  given  a  date.  It is submitted that the
\n        statement now produced as of 8.3.1996 is one prepared later
\n        and  ante  dated  8.3.1996  to  cover  up   the   `disowned
\n        statement’.  This is evident from Ext.X 13 dated 14.3.1996,
\n        which  does  not  refer to the statement taken on 8.3.1996.
\n        To quench our curiosity, we requested the Public Prosecutor
\n        to show us any entry  made  by  any  Investigating  Officer
\n        after  PW.95 handed over investigation to indicate that the
\n        subsequent   Investigators   had   perceived    any    such
\n        indiscretion on the part of PW.95.  In fact, the subsequent
\n        report  marked as Ext.X 13 prepared by PW.91 would indicate
\n        that   the   subsequent   Investigating   Officers\/superior
\n        officers had no grievance that PW.95 had committed any such
\n        indiscretion except a casual statement made by PW.97 at the
\n        time  of filing the charge sheet that action may have to be
\n        contemplated  against  PW.95  after  completion  of  trial.
\n        There is no contemporaneous entry which would indicate that
\n        PW.93  or  subsequent  Investigating Officers had expressed
\n        reservations about the investigation  conducted  by  PW.95.
\n        No  such  contemporaneous  record  is available in the case
\n        diary until PW.97 chose to submit his final report.\n<\/p>\n
        \t133.  In answer to these  contentions,  the  Public
\n        Prosecutor  submits  that PW.82 had categorically disclosed
\n        in the court below that so long as he was in charge of  the
\n        investigation,  until  the afternoon of 27.2.1996, PW.3 had
\n        been questioned by him once only and he himself  had  taken
\n        down the admitted statement in his own handwriting, without
\n        the aid  of  any  scribe.  Therefore, there was no occasion
\n        for DW.10 to record a statement from PW.3 upon  questioning
\n        by him.    This  evidence of PW.82 is sufficient to discard
\n        Ext.C2, the prosecutor submits.    Our  attention  is  also
\n        invited to  the evidence given by PW.95.  When he commenced
\n        investigation,  he  had  never  seen  Ext.C2  in  the  case
\n        records.   It  is  also  submitted by the Public Prosecutor
\n        that there was no occasion for DW.10 to write  down  Ext.C2
\n        because,  even  according to DW.10, he had been deputed for
\n        the investigation of Crime  No.34\/96,  as  is  revealed  by
\n        Ext.X 10  case  diary  relating  to  that case.  There is a
\n        report, Ext.P102 by DW.10 revealing the investigative steps
\n        that he had taken in  connection  with  Ext.X  10  case  at
\n        Kumali,  Kambam  and Theni, which lie far away from Munnar.
\n        Therefore, based on the contents of that  report  given  by
\n        DW.10 to PW.95, there was no occasion for him to be present
\n        in Munnar Police Station earlier than 5 P.M.  on 27.2.1996.
\n        The report Ext.P119 detailing the counts of offences, based
\n        on  the  information  revealed by PW.3 to PW.82 had reached
\n        the magistrate  on  27.2.1996  itself.     Therefore,   the
\n        statement  given  by  PW.3  to  PW.82  could  not have been
\n        transcribed by DW.10.\n<\/p>\n
        \t134.   It  is  further  submitted  by  the  Special
\n        Prosecutor that the evidence of DW.1 that he had obtained a
\n        copy  from  the  police station at Devicolam also cannot be
\n        believed.  According to that witness,  he  had  obtained  a
\n        photo  copy of Ext.C2 on a Maundy Thursday which was really
\n        on 4.4.1996.  By that date, the case diary had already been
\n        transferred to PW.91.  So, there was no occasion  for  DW.1
\n        to  get  copy  of Ext.C2 from the Devicolam Police Station.
\n        Therefore, what he had stated before the court below cannot
\n        be believed.\n<\/p>\n
        \t135.  The Public  Prosecutor  also  submitted  that
\n        reference  in  Ext.D  14  bail  order about the case of the
\n        prosecution is not with reference to what  the  victim  had
\n        spoken to the investigating officers, but with reference to
\n        the   notes   of   investigating   officers  based  on  the
\n        information collected from the  accused  persons  as  well.
\n        That  was why Ext.D14 order refers to a cash transaction of
\n        Rs.1,600\/-.  It does not have any bearing on Ext.C2.\n<\/p>\n
        \t136.  It is further submitted  that  PW.93  had  to
\n        cross  check with PW.3 about Sivaji on 10.3.1996 and had to
\n        obtain a clarification, because on arrest of  Accused  No.4
\n        on 10.3.1996 at about 10.45 P.M.  at his house, he had said
\n        about Sivaji.   He referred to Accused No.10 as Sivaji.  It
\n        is to clarify that position that PW.3 was questioned on the
\n        mid night of 10.3.1996 itself and therefore,  reference  to
\n        Sivaji  in  the statement dated 10.3.1996 has nothing to do
\n        with Ext.C2.\n<\/p>\n
        \t137.  Coming to the  `disowned  statement’,  it  is
\n        submitted   by   the   Public   Prosecutor  that  PW.3  had
\n        categorically deposed before the court below that PW.95 had
\n        never recorded  a  statement.    Therefore,  much  veracity
\n        cannot  be  attributed  to  the  `disowned statement’ dated
\n        28.2.1996, or to the contents therein.    It  is  submitted
\n        that,  it  was  prepared  only to screen off several of the
\n        accused.  Even according to PW.95, the  disowned  statement
\n        had been  recorded  by none other than PW.96.  Based on his
\n        diary produced in court and Ext.P178 note book of PW.96, it
\n        is contended that PW.96 was not available in Munnar at  the
\n        time when PW.3 was questioned by PW.95 and therefore, there
\n        was no occasion for him to record the disowned statement.\n<\/p>\n
        \t138.  It is further submitted that the reference to
\n        Vikasini  in the `disowned statement’ was designed by PW.95
\n        and 96 deliberately to probabilise the contents in  Ext.C2.
\n        They  prepared  the  disowned  statement  with  a motive to
\n        substitute the `admitted statement’ which they could not do
\n        as the case diary  had  been  transferred  to  PW.93.    So
\n        reference  to Vikasini in the disowned statement and Ext.C2
\n        does not have any bearing at all.\n<\/p>\n
        \t139.  Referring to the class  mate  of  PW.3  named
\n        Little  Flower,  the  two  teachers and to the route to the
\n        house of  PW.18,  a  relative  of  Accused  No.3  Jamal  at
\n        Elappara,  mentioned  in  the  `disowned  statement’, it is
\n        submitted by the Special Public Prosecutor that  those  are
\n        included to probabilise that PW.3 was questioned.\n<\/p>\n
        \t140.   With  reference  to the contention regarding
\n        non-inclusion of Accused No.28  in  the  array  of  accused
\n        until  21.3.1996  in Ext.P157 statement, it is submitted by
\n        the Public Prosecutor  that  it  was  only  an  inadvertent
\n        mistake.\n<\/p>\n
        \t141.  So, according to the Public Prosecutor, there
\n        cannot  be  any  prejudice  at all with reference to Ext.C2
\n        which had never been recorded from PW.3.  Therefore, it  is
\n        not a  statement  under  Section 161 Cr.P.C.  The `disowned
\n        statement’ had also never been recorded.  So, these are not
\n        really part of the case records or  documents,  the  copies
\n        whereof  have  to be produced in court and furnished to the
\n        accused.  Necessarily, no prejudice  whatsoever  arises  in
\n        this case.\n<\/p>\n
        \t142.   It  is  a  statutory requirement in terms of
\n        Section 173(5) Cr.P.C.  that all documents  and  statements
\n        recorded   from  the  witnesses  on  whom  the  prosecution
\n        proposes to rely, have to  be  produced  in  court.    That
\n        includes  all  the  statements, if more statements had been
\n        taken from a particular witness and not any  one  statement
\n        or the  final  one.    If  the prosecution chooses to place
\n        reliance on any witness, all  statements  of  that  witness
\n        recorded under  Section  161  Cr.P.C.  have to be produced,
\n        whether the prosecution wants to rely on or disown any  one
\n        of such statements.    Section  207(iii)  Cr.P.C.   further
\n        enjoins that copies of all such  statements  and  documents
\n        shall be  furnished to the accused.  These are the mandates
\n        to ensure a fair trial.\n<\/p>\n
        \t143.  The concept of fair  trial  entails  familiar
\n        triangulation  of  interests of the accused, the victim and
\n        the society.    A  trial  which  is  primarily   aimed   at
\n        ascertaining truth  has  to  be  fair to all concerned.  As
\n        held by the Supreme Court in Zahira Habibulla  H.Sheikh  v.
\n        State of Gujarat<\/a> {2004 (4) S.C.C.158}.\n<\/p>\n
         “There  can  be  no analytical all comprehensive or
\n                exhaustive definition of the concept of fair trial,
\n                and it may  have  to  be  determined  in  seemingly
\n                infinite  variety  of  actual  situations  with the
\n                ultimate object in mind,  viz.,  whether  something
\n                that was done or said either before or at the trial
\n                deprived  the quality of fairness to a degree where
\n                a miscarriage of justice has resulted.”\n<\/p>\n
        The Apex Court further pointed out:\n<\/p>\n
         “Failure to  accord  fair  hearing  either  to  the
\n                accused  or  the  prosecution violates even minimum
\n                standards of due process of law.  It is inherent in
\n                the  concept  of   due   process   of   law,   that
\n                condemnation  should  be  rendered  only  after the
\n                trial in which the hearing is a real one, not  sham
\n                or a  mere  farce  and  pretence.    Since the fair
\n                hearing requires an  opportunity  to  preserve  the
\n                process,  it  may  be  vitiated  and violated by an
\n                overhasty  stage-managed,  tailored  and   partisan
\n                trial.”\n<\/p>\n
        Denial of fair trial is as much injustice to the accused as
\n        is to  the  victim and the society.  Thus assurance of fair
\n        trial is the first imperative of justice.  The  fair  trial
\n        for  a  criminal  offence  consists  not  only in technical
\n        observance of the frame and  forms  of  law,  but  also  in
\n        recognition  and  just  application  of  its  principles in
\n        substance, to find out truth  and  prevent  miscarriage  of
\n        justice.  As pointed out by the Apex Court:\n<\/p>\n
         “It is as much the duty of the Prosecutor as of the
\n                Court  to  ensure  that full and material facts are
\n                brought on  record  so  that  there  might  not  be
\n                miscarriage of justice.”\n<\/p>\n
        Therefore,  it  need not be stated in the background of the
\n        statutory provisions, that non-production or non-furnishing
\n        of the relevant documents or the statements will result  in
\n        prejudice so far as the accused is concerned.\n<\/p>\n
        \t144.   It  is  now  trite  law  in the light of the
\n        decision in Pulukuri Kottaya and others v.    Emperor  {AIR
\n        (34)  1947  PC  67}  that  the non-furnishing of the copies
\n        shall  result  in  irresistible  conclusion  of  prejudice.
\n        Therefore, it need not further be enquired into whether non
\n        furnishing  of  a  relevant  document or statement recorded
\n        will result in prejudice.\n<\/p>\n
        \t145.  But, when more statements are recorded from a
\n        particular witness and few  of  such  statements  had  been
\n        given  to  the accused, it must be shown what is the extent
\n        of prejudice caused to the accused in  not  furnishing  the
\n        copies of   one  or  few  of  such  statements.    In  such
\n        circumstances, prejudice cannot be  assumed  to  hold  that
\n        trial was  totally  unfair.   The extent of prejudice shall
\n        have to be examined by the court.  In the decision reported
\n        in Rugmini v.  State of Kerala {1986 KLT 1356}, it has been
\n        held, though in yet another context that:\n<\/p>\n
         “The question whether such irregularities,  if  any
\n                would lead to miscarriage of justice is a matter to
\n                be  decided  during  trial  and  in  the  light  of
\n                evidence.”\n<\/p>\n
        The Supreme Court has also held in the decision reported in
\n        Sunitha Devi v.  State of Bihar and another (AIR  2004  SCW
\n        7116), examining the case law on the subject that:\n<\/p>\n
         “the court has to give a definite finding about the
\n                prejudice or otherwise”.\n<\/p>\n
        \t146.  In this case, the court below had come to the
\n        conclusion that Ext.C2 had never been recorded.  Therefore,
\n        there  was  no  prejudice  in not furnishing the said copy.
\n        But that finding has to be  again  tested  in  this  appeal
\n        based on the contentions and the law as aforesaid.  We have
\n        to  come  to  a  definite  finding  as  to  which among the
\n        statements – `admitted  statement’  or  Ext.C2  was  really
\n        recorded on 27-2-1996.\n<\/p>\n
        \t147.  The contention centered around Ext.P157 dated
\n        27-2-1996 is a weighty contention.  It is the admitted case
\n        of  the  prosecution  that Accused No.28 George Cherian had
\n        been included among accused only  on  21-3-1996.    If  the
\n        admitted   statement  had  been  on  record  on  27-2-1996,
\n        normally, he should have been included when the first  list
\n        of  accused  was furnished to the court on 11-3-1996 as per
\n        Ext.P166 report.   If  there  were  any  omissions  due  to
\n        oversight  in  including  his  name,  his  name could have,
\n        necessarily,  been  included  in  Ext.P121   report   dated
\n        18-3-1996,  because  that  report  was filed by yet another
\n        investigating officer who could, after examining  the  case
\n        diary  detect  that  omission  based on the contents in the
\n        `admitted statement’.  That Accused No.28 was included only
\n        on 21-3-1996 shows that there was no  material  until  that
\n        date  divulged  by PW.3 regarding the complicity of Accused
\n        No.28.  The admitted  statement  cannot  be  in  existence,
\n        therefore, until  21-3-1996.    This convincingly shows the
\n        probability of the existence of not only Ext.C2,  but  also
\n        the  `disowned  statement’  stated to be recorded by PW.95.
\n        Both these statements do not refer to any criminal act said
\n        to be committed by Accused No.28, though his name has  been
\n        specifically referred to by PW.3.  Further those statements
\n        exonerate  Accused  No.28  from  any  complicity and he was
\n        styled as a person  who  prompted  and  persuaded  PW.3  to
\n        escape from  the  clutches  of  Accused No.4.  Necessarily,
\n        PWs.82, 93, 95, and PW.85 Dy.S.P.   Jose  who  investigated
\n        the case, successively could not have omitted to notice the
\n        alleged  omission  of  each of their previous investigating
\n        officers in not including Accused No.28  in  the  array  of
\n        accused.  It  was  not  an omission at all.  It was only on
\n        21.3.1996 he  was  included.    Necessarily,  it  is   thus
\n        probable that Ext.C2 was in existence all the while and not
\n        the `admitted statement’.\n<\/p>\n
        \t148.  As regards the evidence given by DW.1, in the
\n        second  case  it  has  to be borne in mind that the defence
\n        need not conclusively, disclose the  source  from  which  a
\n        photo copy  of Ext.C2 had been obtained by DW.1.  It may be
\n        a practice that deserves condemnation.  As far as  DW.1  is
\n        concerned,  he could manage a copy because of the defect in
\n        the police machinery in the State, perhaps.   Anyhow,  when
\n        viewed  in  the angle of defence, necessarily, it cannot be
\n        omitted to be reckoned though  obtained  not  through  fair
\n        means.\n<\/p>\n
        \t149.   Both  sides  agree  that  Ext.D14 bail order
\n        refers to payment of Rs.1,600\/-, when Dharmarajan sent PW.3
\n        home on 26.2.1996.  That version given by PW.3 is available
\n        only in Ext.C2.  When  the  court,  while  passing  Ext.D14
\n        order,  referred  to some facts as the prosecution case and
\n        when admittedly the case diary had been passed  on  to  the
\n        court  for  reference  and  when it is discernible from the
\n        order that the case diary had been perused  by  the  court,
\n        the  prosecution  case  recited  in  para 4 of Ext.D14 must
\n        necessarily be as stated by the victim as then disclosed by
\n        the case diary.  Therefore, the reference to these  aspects
\n        in Ext.D14  probabilises  the  existence  of Ext.C2.  It is
\n        very difficult to swallow  the  contention  of  the  Public
\n        Prosecutor  that  the court in Ext.D14 had referred to such
\n        particulars from  out  of  the  statement  of  the  accused
\n        Dharmarajan  or  from  the  notings  of  the  investigating
\n        officer based on the disclosure made by Dharmarajan.   This
\n        circumstance also probabilises the existence of Ext.C2.\n<\/p>\n
        \t150.   Of  course,  the  Public  Prosecutor is well
\n        justified in submitting that  much  veracity  need  not  be
\n        attributed  to Ext.X2 crime ledger which had been prepared,
\n        kept and maintained at the  office  of  PW.95,  the  Circle
\n        Inspector.\n<\/p>\n
        \t151.   But  the  explanation  given  by  the Public
\n        Prosecutor with  regard  to  the  reference  to  Sivaji  in
\n        Ext.D2(b) in the second case is most unconvincing.  We have
\n        extracted supra the real words of the victim as recorded by
\n        PW.93  that what she had stated to the police was Stephenji
\n        and that she had never said to the police as Sivaji.   From
\n        the  tenor  of  the statement dated 10.3.1996, we find that
\n        Ext.D2(b) therein was with reference to  her  own  previous
\n        statement referring to Sivaji.  It cannot be with reference
\n        to  a  statement  said  to  be  given  by  Accused  No.4 as
\n        suggested by the  Public  Prosecutor.    Accused  No.4  was
\n        arrested at  about  10.45 P.M.  on 10.3.1996 from his house
\n        at Kottayam.  Even admittedly, as submitted before us,  his
\n        statement was  not  recorded on 10.3.1996.  It was recorded
\n        only on the next day.  So, there arises  no  situation  for
\n        obtaining   any   clarification  on  Sivaji  from  PW.3  on
\n        10.3.1996.  Therefore, the reference to Sivaji appearing in
\n        Ext.D2(b) in the second case could  not  be  based  on  the
\n        statement  given  by  Accused  No.4;  but  can only be with
\n        reference to the statement given  by  PW.3  herself  on  an
\n        earlier occasion.  The only such statement is Ext.C2.  This
\n        also convincingly probabilises the existence of Ext.C2.\n<\/p>\n
        \t152.  There  is  yet  another aspect as well.  Even
\n        going by the prosecution case, Stephenji is a close  friend
\n        of  Accused  No.4  Reji,  who  had,  while at Kuravilangad,
\n        telephoned  to  Stephenji  to  come  there   to   have   an
\n        intercourse with PW.3.  Such an invitation can only be to a
\n        close friend  in  the  normal circumstance.  Mistake in the
\n        name of such a close friend as Sivaji instead of  Stephenji
\n        by  Accused  No.4 is certainly incompatible to commonsense.
\n        Therefore, on that reason also the contention  advanced  by
\n        the   Public   Prosecutor   cannot   be   accepted,   again
\n        probabilising the existence of Ext.C2.\n<\/p>\n
        \t153.  Though, not of much importance, the  admitted
\n        version  of PW.3, when examined in the second case as PW.1,
\n        is that she had visited the park on 17.1.1996 at Ernakulam.
\n        This also appears in Ext.C2.  This is also in tune with the
\n        check out time from Metro Lodge at Kottayam on the  morning
\n        of  17.1.1996  {Ext.P-57(a)}  and the checking in, in Anand
\n        Lodge at Ernakulam at about 6.45 P.M.  {Ext.P-58(a)} on the
\n        same day.  Necessarily, PW.3 and Dharmajan would have spent
\n        this long time during day light somewhere together.    This
\n        also probabilises the existence of Ext.C2.\n<\/p>\n
        \t154.   Further,  reference  to  Little  Flower, the
\n        class mate, two teachers of PW.3 and the route  to  certain
\n        places  where  she  had  been  taken  and  other  minor and
\n        intricate details in  Ext.C2  also  probabilise  that  such
\n        information  could  have  been  divulged to the one who had
\n        recorded  it  only  by  PW.3,  as  such  details  were  not
\n        available at  that  time  from  anywhere  else.   This also
\n        probabilises the existence of Ext.C2.\n<\/p>\n
        \t155.  Further, the name of the  film  mentioned  in
\n        Ext.C2  has  also  resemblance  to the Hindi film `Gambler’
\n        shown on 17.1.1996 in one of the theatres at  Ernakulam  as
\n        disclosed  by  the  news  paper  attempted to be brought in
\n        evidence by  Dharmarajan,  as  mentioned  above.    As  per
\n        Ext.C2, PW.3 has seen the film with Dharmarajan after their
\n        check in  at Anand Lodge at about 6.45 P.M.  Gambler is the
\n        only Hindi cinema exhibited  at  that  time  in  Ernakulam,
\n        going by  the  said  news  paper.  This could not have been
\n        known to the policemen in Munnar  on  27.2.1996  except  as
\n        told by  PW.3.    This  also  probabilises the existence of
\n        Ext.C2.\n<\/p>\n
        \t156.   It  is  admitted  by  PW.3  that  PW.95  had
\n        questioned her   on   28.2.1996.      PW.95   started   the
\n        investigation of the case only on that day.  As admitted by
\n        PW.3 she reached the police station at about 11 A.M.    and
\n        at about 1 P.M.  she had been taken from the police station
\n        to PW.73 doctor for detailed examination.  Necessarily, she
\n        was available  in  the  station  for two hours.  So, in all
\n        probabilities, PW.95 who took up investigation of the  case
\n        on  that  day  would  have  questioned her for ascertaining
\n        details and recorded such details.    He  would  have  thus
\n        prepared  a statement with the details he had gathered from
\n        PW.3 with regard to the commission of the  offence.    Even
\n        though  PW.96 who had transcribed the statement recorded by
\n        PW.95 was deputed for investigation of Crime 34\/96,  {Ext.X
\n        10  (e)  in  the  second  case}, at Kumali on 27th and 28th
\n        February, 1996, it cannot be stated that he would not  have
\n        been  available  on  28th,  to  transcribe  that statement.
\n        Ext.P178 note book shows that  he  was  available  on  28th
\n        night in  Munnar  police station.  The entries in such note
\n        book need not be taken as gospel truth  with  every  minute
\n        details therein.    As  he  had  been  present on that day,
\n        necessarily, whatever  information  gathered  by  PW.95  on
\n        questioning PW.3 could have been transcribed by PW.96.  So,
\n        the disowned statement cannot be brushed aside and it being
\n        one recorded  under  Section  161 Cr.P.C.  by PW.95, a copy
\n        thereof must be produced before the court and furnished  to
\n        the accused, as insisted by the Code.\n<\/p>\n
        \t157.    When  such  statement  is  thus  available,
\n        reference therein to Vikasini, has much force to relate  it
\n        to Ext.C2.  This Vikasini is none other than Accused No.39,
\n        who is named, as now disclosed, as “Vilasini”.  Vikasini is
\n        an uncommon   name   in  Kerala.    Necessarily,  the  name
\n        appearing as Vikasini in the `disowned statement’ must have
\n        crept in there, because of the reference to  that  name  in
\n        Ext.C2  thereby again probabilising the existence of Ext.C2
\n        apart from the `disowned statement’.\n<\/p>\n
        \t158.  The existence of the  disowned  statement  is
\n        also probabilised by reason of the reference to a statement
\n        given  by  PW.3  to Munnar Circle Inspector as contained in
\n        her another statement dated 10.3.1996 (Ext.D2 in the second
\n        case) recorded by PW.93.  It is again probabilised  by  the
\n        statement  dated 8.3.1996 in which PW.3 refers that she had
\n        not given a statement to PW.95 as had  been  read  over  to
\n        her.   In  such  circumstances, as already mentioned above,
\n        the officer who recorded  that  statement,  ought  to  have
\n        ascertained  from  her as to what had been really spoken by
\n        her  to  PW.95,  because  as  admitted  by  her  PW.95  had
\n        questioned her.    It  is  the  duty  of  the investigating
\n        officer like PW.93 when he had his fingers on the `disowned
\n        statement’ to put each of the statements contained  therein
\n        to   PW.3  to  ascertain  the  veracity  of  each  of  such
\n        statement.  As it  has  not  been  done  so  by  PW.93  who
\n        recorded  the  statement dated 8.3.1996, the probability is
\n        that PW.95 would have recorded  the  statement  from  PW.3.
\n        These  details  are  sufficient  enough to probabilises the
\n        existence of the `disowned statement’.\n<\/p>\n
        \t159.  In the light of the controversy  with  regard
\n        to  the two statements dated 27.2.1996, we had, taking much
\n        pain, compared both the statements as transcribed.   Though
\n        the contents are almost same, no allegation of rape against
\n        Dharmarajan had  been  revealed by PW.3 in Ext.C2.  She has
\n        also not attributed any absence of consent specifically  to
\n        any of  the  present  alleged  rapes.  We have also noticed
\n        that  something  more  is  added  with  reference  to   the
\n        complicity   of   Dharmarajan   and   with  regard  to  the
\n        ingredients of  rape  in  the  `admitted  statement’  dated
\n        27.2.1996   as  an  improvement  to  Ext.C2,  the  disputed
\n        statement.  A close examination of  both  these  statements
\n        discloses,   from  the  striking  off  and  corrections  at
\n        different places in the `admitted statement’, that  it  had
\n        been attempted  to be copied and improved from Ext.C2.  The
\n        contention of the Public Prosecutor that PW.95 designed the
\n        `disowned statement’ to probabilise the existence of Ext.C2
\n        which he, along with PW.96, wanted to substitute  later  in
\n        place of the `admitted statement’ is too far fetched and is
\n        supported with no evidence or probabilities.\n<\/p>\n
        \t160.    Thus,   these   are   the   situations  and
\n        circumstances which probabilises that the  first  statement
\n        given  by  PW.3  to  any  of  the investigating officer was
\n        Ext.C2 and  not  the  `admitted  statement’  and  that  the
\n        `disowned  statement’  is  the  one  recorded  by  PW.95 on
\n        questioning PW.3 on 28.2.1996.\n<\/p>\n
        \t161.   The  accused  in  that  regard  had  on  all
\n        probabilities  discharged  their  burden to show that there
\n        had been a  first  statement  earlier  than  the  `admitted
\n        statement’.   It  has  been  withheld  not  only  from  the
\n        accused, but from the court as well.  When  that  statement
\n        did not reveal the offence of rape so far as Dharmarajan is
\n        concerned  and it did not spell out absence of consent from
\n        PW.3 in respect of some of the alleged rapes,  necessarily,
\n        all  the  accused  could  have made use of it to contradict
\n        PW.3, moulding  their  defence  on  that  aspect  from  the
\n        beginning of  the  trial  itself.  Non furnishing of Ext.C2
\n        amounts to denial of a  fair  opportunity  to  mould  their
\n        defence.   Equally  so is the non production\/non furnishing
\n        of the `disowned statement’ which is  really  found  to  be
\n        recorded on  questioning  PW.3  by PW.95.  This necessarily
\n        results in prejudice.\n<\/p>\n
        \t162.  This controversy could not have occurred,  if
\n        the  police  had  adopted  a  fair and reasonable method as
\n        prescribed in the Code in the matter of registration of the
\n        crime.   As  already  mentioned   by   us,   Ext.P1   first
\n        information  statement nor Ext.P1(a) FIR reveals commission
\n        of any cognizable offence for the police  to  proceed  with
\n        the investigation.  The statement given by PW.1 – father of
\n        PW.3, is  that  she  had gone out of the house.  He did not
\n        have a suspicion  even  that  she  had  been  kidnapped  or
\n        abducted.   What  PW.1  had revealed to PW.82, while giving
\n        the first information was that<\/p>\n
         ”\n<\/p>\n
         \t\t\t\t\t.”\n<\/p><\/blockquote>\n
         \t\t(I do not  know  why  she  had  run
\n                away).\n<\/p><\/blockquote>\n
        This  does  not  reveal  any  commission  or  suspicion  of
\n        commission of a cognizable offence to attract  Section  154
\n        Cr.P.C.   which obliges a police officer to obtain a signed
\n        statement and to record it in the FIR book.  Merely because
\n        certain instructions contained in the Police Manual  oblige
\n        the  Station  House Officer to record a man missing case in
\n        the FIR book, it will not make it an F.I.  Statement  under
\n        Section  154  to proceed with the investigation in terms of
\n        Section 156 Cr.P.C.  An offence has been revealed  only  by
\n        the   statement  given  by  PW.3  to  PW.82  on  27.2.1996.
\n        Necessarily, going by the statutory provisions,  that  must
\n        be   taken   as  the  revealing  of  information  regarding
\n        commission of a cognizable offence to be entered in the FIR
\n        book to proceed with the investigation.   In  this  regard,
\n        the  law  has  been  made  explicitly clear by the decision
\n        reported in Mani Mohan Ghose v.  Emperor [AIR 1931 Calcutta
\n        745}.  It was held as follows:\n<\/p>\n
         “The conditions as to writing in S.154 of the  Code
\n                are merely procedural.  If there is an “information
\n                relating to the commission of a cognizable offence”
\n                it  falls  under  S.154  and  becomes admissible in
\n                evidence as such, even though  the  police  officer
\n                may  have neglected to record it in accordance with
\n                law.  Owing to this neglect  in  particular  cases,
\n                the  Courts  have  laid down from time to time that
\n                the information which starts the  investigation  is
\n                the  real  first information under S.154 and should
\n                be treated in evidence as such.  It does not depend
\n                on the sweet will of the police officer, who may or
\n                may not have recorded it.  But the condition as  to
\n                the character of the statements is really two fold:
\n                first  it  must  be an information and secondly, it
\n                must relate to a cognizable offence on the face  of
\n                it  and  not  merely  in  the  light  of subsequent
\n                events.”\n<\/p>\n
        It was therefore incumbent even in  man  missing  cases  to
\n        register  an  FIR  under  Section  154, when the offence is
\n        first revealed subsequently.  In State of Assam v.  Upendra
\n        Nath, Rajkhowa {1975 Crl.L.J.  354}, it was held that:\n<\/p>\n
         “An  information  to  have  the  status  of   first
\n                information   report   under  Sec.154  must  be  an
\n                information  relating  to  the  commission   of   a
\n                cognizable  offence  and  it  must not be vague but
\n                definite enough  to  enable  the  police  to  start
\n                investigation.”\n<\/p>\n
        It has  also  been  held  in Arun Kumar v.  State {AIR 1962
\n        Calcutta 504} that :\n<\/p>\n
         “A first information report has to  answer  certain
\n                tests,  namely  that it must relate to a cognizable
\n                offence.  A report that some body is missing is not
\n                an information relating  to  the  commission  of  a
\n                cognizable offence under Section 154 of the Code of
\n                Criminal Procedure.”\n<\/p>\n
        \t163.   So,  had  the  information  given by PW.3 on
\n        27.2.1996, been registered as FIR,  necessarily,  it  would
\n        have reached the court immediately and there would not have
\n        been  any  controversy  as  to  which of the two statements
\n        dated 27.2.1996 really forms the first statement  given  by
\n        PW.3.   Certainly,  as  submitted by the Public Prosecutor,
\n        the police adopted the prevailing practice  of  registering
\n        man  missing cases in FIR form and further statements being
\n        taken under Section 161 Cr.P.C.\n<\/p>\n
        \t164.  In such circumstances, we make it clear  that
\n        it will be advantageous to the police and the machinery for
\n        administration  of criminal justice to follow the procedure
\n        in terms of the Code strictly in future.  However,  as  the
\n        police  has,  in  this case, only adopted the practice that
\n        was being followed till then, the non registration  of  the
\n        statement  dated 27.2.1996 given by PW.3 as an FIR will not
\n        result in vitiation of the investigation nor the trial.\n<\/p>\n
        \t165.  But, at the same time, when the existence  of
\n        Ext.C2  is  probabilised and when Ext.C2 did not attach any
\n        complicity on Dharmarajan  and  even  does  not  spell  out
\n        absence of consent, necessarily, the non-production and non
\n        furnishing  of the copy thereof will result in prejudice so
\n        far as the allegations of rape and gang rape are concerned.\n<\/p>\n
        \t166.  We have already come to the  conclusion  that
\n        the  allegations  of  the offences punishable under Section
\n        376(1) and  376(2)(g)  have  not  been  established  beyond
\n        doubt.  Apart from that, the accused are also prejudiced in
\n        that context because of non furnishing of copies of Ext.C2.\n<\/p>\n
        \t167.   So far as the accused other than Dharmarajan
\n        are concerned, they had not been provided with  the  copies
\n        of  Ext.C2,  the `disowned statement’, the statements dated
\n        8.2.1996, 10.3.1996 and 15.3.1996 until the  completion  of
\n        the cross-examination of PW.3.  We have already adverted to
\n        the  importance and significance of those statements in the
\n        search for truth in this case.  The accused had to  file  a
\n        petition  seeking copies thereof which had been objected to
\n        by the prosecution.  Ext.D37 marked in the second  case  is
\n        that  objection  wherein  the  existence of Ext.C2 has been
\n        disputed.  All the other four statements had been  produced
\n        in the court at that stage.  It is submitted by the counsel
\n        for  the  accused  that  the  belated  production  of those
\n        statements will not satisfy the requirement of law.   Apart
\n        from  that,  copies of such statements must be furnished to
\n        the accused.  They have not received it.  It  is  submitted
\n        by  the  Public  Prosecutor  that  a memo was filed showing
\n        service of copies.   Had  it  been  so,  necessarily,  that
\n        aspect ought to have been referred to in Ext.D37, objection
\n        filed by  the  prosecutor.  Though it is submitted that the
\n        copies of the statements have been  furnished  subsequently
\n        and  memo  had been filed showing service of copies, we are
\n        not able to place our fingers on such a memo to come to the
\n        conclusion that there was furnishing  of  such  statements.
\n        The  judgment  does  not  show specifically that the copies
\n        were furnished.  Even if those copies  had  been  furnished
\n        later  at  the  fag  end  of trial, after completion of the
\n        cross-examination of PW.3, for days together, it  will  not
\n        serve  any purpose to cure the damage that the accused have
\n        already suffered because of absence of those  documents  at
\n        the time  of  her examination.  Thus prejudice had resulted
\n        therefrom at the time of cross-examination of PW.3.    They
\n        have also moulded their defence based on the then available
\n        details only.    They  were disabled to mould their defence
\n        effectively after receiving the copies  in  time.    So  it
\n        caused  prejudice to the accused in the first case totally.
\n        The details including the arraying of Accused No.28 and the
\n        reference to Sivaji that we have examined  earlier  are  of
\n        much  importance  for  the  other  accused  to  mould their
\n        defence  with  reference  to  the  said  statements   which
\n        contained very important details which could have been made
\n        use  of  by  them  for  moulding  their  defence  strategy.
\n        Therefore, belated production cannot  cure  the  defect  of
\n        prejudice  arising  out  of  non production in time and non
\n        furnishing of copies  in  time,  even  assuming  that  such
\n        copies were furnished after Ext.D37.\n<\/p>\n
        \t168.   It  is true, as contended by the counsel and
\n        as  discussed  above,  departure  from  the  mandatory  and
\n        protective statutory  procedure  will cause prejudice.  But
\n        the court has to examine whether that prejudice will affect
\n        the case in its entirety or not, as  held  by  the  Supreme
\n        Court in  Sunitha Devi v.  State of Bihar and another {2004
\n        AIR SCW 7116}.  So, we have to  examine  whether  such  non
\n        production\/non furnishing disabled Dharmarajan from meeting
\n        the  charges  under Sections 366 A and 372 IPC, that he had
\n        been called upon to meet.\n<\/p>\n
        \t169.  In that regard, we have to make it clear that
\n        the departure from the statutory provisions  now  disclosed
\n        with  regard  to  the  non  furnishing  of Ext.C2 is not so
\n        violent as to strike at the root of the trial in respect of
\n        the said two offences.  If the procedure  adopted  was  one
\n        which  the Code positively prohibited, it was possible that
\n        the procedure  had  worked  out  actual  injustice  to  the
\n        accused.  Violation must be so obvious that they will speak
\n        for  themselves  as,  for  example,  a  refusal to give the
\n        accused a  hearing,  a  refusal  to  allow  him  to  defend
\n        himself,  a  refusal to explain the nature of the charge to
\n        him and so forth, so that  prejudice  shall  be  so  patent
\n        through out and the procedure adopted shall be so abhorrent
\n        to  well  established  notions  of natural justice that the
\n        trial is reduced to mockery and does  not  conform  to  the
\n        norms envisaged by law.  So, in the complete absence of any
\n        substantial   injustice  or  in  the  complete  absence  of
\n        anything that outrages what is due to  natural  justice  in
\n        criminal cases, it cannot be said that non-supply of Ext.C2
\n        goes  to  the  root  of  the  trial  vitiating  it totally.
\n        Because  the  real  question  is  whether  disregard  of  a
\n        particular  provision  amounts  to  substantial denial of a
\n        just and  fair  trial  as  contemplated  by  the  Code  and
\n        understood   by   the   comprehensive  expression  “Natural
\n        Justice”.\n<\/p>\n
        \t170.  Even if the non furnishing of Ext.C2 resulted
\n        in prejudice, so far as Dharmarajan is  concerned,  it  can
\n        result  in  prejudice  only  with  reference to the details
\n        contained therein vis-a-vis the allegation  of  conspiracy,
\n        kidnapping, rape  and  gang  rape.  That prejudice will not
\n        percolate into other allegations.   He  has  even  admitted
\n        taking the  girl  from  place  to place.  During such time,
\n        several others had illicit intercourse with her.  The other
\n        statements recorded by the other investigating officers, on
\n        closer scrutiny of the details revealed during  the  course
\n        of the  investigation, were given to him.  It contained the
\n        particulars for meeting the allegation of the offences made
\n        punishable under Section 366 A and 372 IPC.  Furnishing  of
\n        Ext.C2  would  not  have  placed him in any better position
\n        substantially in the defence of those charges.\n<\/p>\n
        \t171.  Thus, in this case, as the  other  statements
\n        containing  details  regarding  those  allegations had been
\n        furnished, it cannot be said that in the matter of trial of
\n        the said offences, there had been any prejudice so  far  as
\n        Dharmarajan  is  concerned, much less substantial prejudice
\n        or miscarriage of justice.\n<\/p>\n
        \t172.  Going by the evidence  of  PW.3  and  by  the
\n        admitted   case  of  Dharmarajan,  it  is  conclusive  that
\n        Dharmarajan had taken PW.3 from place to place  and  during
\n        that journey, it is clear that, she was subjected to sexual
\n        intercourse by  others.  That sexual intercourse is illicit
\n        intercourse as she was a minor at that time,  and  she  was
\n        not related  to  any  one  by  marriage.  Even according to
\n        Dharmarajan, he did not have any relation with  that  girl.
\n        If  as  admitted  by  Dharmarajan the girl had followed him
\n        from  Ernakulam  to  different  places  mentioned  in   his
\n        statement under Section 313 Cr.P.C., necessarily, it was on
\n        inducement by  Dharmarajan.    Dharmarajan has thus induced
\n        PW.3 who was admittedly under the age of  18  years  to  go
\n        from  place  to place and she had been subjected to illicit
\n        intercourse during   that   period.      The   irresistible
\n        conclusion, therefore, is that he has committed the offence
\n        punishable under Section 366 A IPC.\n<\/p>\n
        \t173.   It  is also clear from the same evidence and
\n        the stand taken by Dharmarajan in his Section 313 statement
\n        that he had disposed of PW.3 while she had been taken  from
\n        place  to  place,  to  several  other  persons  for immoral
\n        purpose.  It is clear from the evidence of  PW.3  that  she
\n        had been subjected to illicit intercourse by several of the
\n        accused   in   the   first  case  during  the  period  when
\n        Dharmarajan had admittedly taken her from  place  to  place
\n        and at other places as spoken to by PW.3.  Of course, there
\n        is  no specific evidence of collection of money to find him
\n        guilty of selling of the girl or letting her for hire.\n<\/p>\n
        \t174.  PW.95, when he questioned PW.3  and  recorded
\n        the  `disowned  statement’, had thought of collecting proof
\n        from the details he had gathered and recorded therein.   At
\n        that  stage,  it  would  appear  that  the  attempt  was to
\n        concentrate on this aspect of inducing the  minor  girl  to
\n        illicit intercourse.    But that idea had not been properly
\n        conceived by other investigating  officers  to  proceed  in
\n        that  line,  in  which  case,  the 1st or 2nd degree of the
\n        offence under Sections 372 and 373 IPC would  be  revealed.
\n        Anyhow,  it  has  been  conclusively  proved  based  on the
\n        evidence on record that PW.3 had been at least disposed  of
\n        to  others  by  Dharmarajan  for illicit intercourse or for
\n        unlawful  and  immoral  purposes  thereby  committing   the
\n        offence punishable under Section 372 IPC also.\n<\/p>\n
        \t175.   Under  those  two  counts, he had been found
\n        guilty, by the court below.  But no separate  sentence  has
\n        been  ordered  as the maximum sentence of life imprisonment
\n        for the offence punishable under  Section  376  (2)(g)  was
\n        imposed, which  we  have now vacated.  As we have confirmed
\n        the conviction under the said two  provisions,  so  far  as
\n        Dharmarajan  is concerned, we have also to pass an order of
\n        sentence on those counts.\n<\/p>\n
        \t176.  We are  also  conscious  of  the  contentions
\n        urged  by  the  Public Prosecutor that going by Charge I in
\n        the first case as conspiracy for commission of the  offence
\n        including  that  for  wrongful  confinement,  rape and gang
\n        rape, at difference place has been made against  the  other
\n        accused  as  well,  they  must  also be found guilty of the
\n        offence under Sections 366  A  and  372  IPC.    There  was
\n        specific allegation of conspiracy for wrongful confinement,
\n        for  rape  and  for  gang  rape  and also the allegation of
\n        substantive offence under Sections 372 and 373 IPC, so  far
\n        as the accused in the first case are concerned.  But all of
\n        them  had  been  found not guilty and were acquitted of the
\n        offences under  Sections  372  and  373  IPC.     In   such
\n        circumstances,  they cannot be found guilty of the offences
\n        under Sections 372 or 373 in these appeals filed by them.\n<\/p>\n
        \t177.  The specific  charge  of  the  offence  under
\n        Section  366  A IPC was made only against the first accused
\n        and not against others.  It is submitted that  Charge  No.1
\n        regarding  conspiracy  also  takes  in  the  allegation  of
\n        conspiracy for commission of the offence under Section  366
\n        A as  well.    There  is  specific charge of conspiracy for
\n        wrongful confinement,  rape  and  gang  rape  at  different
\n        places,  which cannot be done without moving her from place
\n        to place.  Therefore, they should also be roped within  the
\n        conviction  under  Section  366  A,  the  Public Prosecutor
\n        submits.\n<\/p>\n
        \t178.  The prosecution has  raised  a  charge  under
\n        Section 120  B  as  charge  No.1.   Only the allegations of
\n        conspiracy for wrongful confinement, rape and gang rape are
\n        specifically raised therein.  The allegation of  conspiracy
\n        for  the offence under Section 366 A IPC can never be spelt
\n        out from that charge.    Moreover,  there  is  no  evidence
\n        regarding  the  conspiracy for the purpose of commission of
\n        offence under Section 366 A or on any  inducement  to  PW.3
\n        said  to be made by any of the accused in the first case to
\n        move her from place to place for  the  purpose  of  illicit
\n        intercourse by  any  one  of  them.  In the absence of such
\n        evidence regarding the conspiracy  for  the  offence  under
\n        Section   366  A  in  this  case,  we  cannot  accept  that
\n        contention of the Public Prosecutor.   There  was  also  no
\n        charge  of  the offence under Section 366 A as such against
\n        any of the accused in the first case, except  accused  No.1
\n        who  did not have, as admitted by the prosecution, any role
\n        except for alleged kidnapping which is  found  against  the
\n        prosecution.   Therefore,  any  of the accused in the first
\n        case cannot be stated to have committed the  offence  under
\n        Section 366 A.\n<\/p>\n
        \t179.   But,  when  Dharmarajan  is  found guilty of
\n        disposing of a minor  for  unlawful  and  immoral  purpose,
\n        there  must be another one or more guilty of obtaining that
\n        girl for unlawful  and  immoral  purpose,  made  punishable
\n        under Section  373  IPC.    The  offences  punishable under
\n        Sections 372 and 373 are that relating to sex trade.    The
\n        accused in the first case were charged with those offences.
\n        They also  faced  trial on that count.  The court below, in
\n        the first case, acquitted all  of  them  of  the  said  two
\n        offences.   Unfortunately,  the  State  did  not  prefer an
\n        appeal against such acquittal.  Even in the scenario of the
\n        said accused filing several  appeals  as  mentioned  above,
\n        assailing  conviction  on other counts, and the pendency of
\n        such appeals for about four years, the State did  not  seem
\n        to have taken that aspect seriously.  When thus there is no
\n        appeal by the State against the acquittal of the accused in
\n        the  first  case  of  the offences of sex trade, punishable
\n        under Sections 372 and 373 IPC, we cannot  punish  them  on
\n        those counts, in the appeals filed by them.\n<\/p>\n
        \t180.    We  have  now  to  decide  the  quantum  of
\n        punishment so far  as  Dharmarajan  is  concerned  for  the
\n        offences punishable  under  Sections 366 A and 372 IPC.  At
\n        this  juncture,  the  counsel  for  Dharmarajan  Sri.Thomas
\n        Mathew was heard on the question of sentence.\n<\/p>\n
        \t181.   It  is submitted by him that the court below
\n        did not pass any sentence after having found him guilty  of
\n        the offences  under  Sections  366 A and 372 IPC.  Sentence
\n        was imposed only for the offence  under  Section  376(2)(g)
\n        IPC.   Therefore,  unless  there is an appeal under Section
\n        377 Cr.P.C.   by  the  State  seeking  enhancement  of  the
\n        sentence  under  Sections 366 A and 372 IPC, this court may
\n        not pass an order of sentence on Dharmarajan on  those  two
\n        counts, it  is  urged.   It is further submitted that he is
\n        now placed in a very difficult situation  having  lost  his
\n        mother.   He  is  facing divorce proceedings from his wife.
\n        He has to maintain his aged father and a  child.    He  has
\n        already  suffered  imprisonment  for  two years and 92 days
\n        including that  at  the   pre-trial   stage.      In   such
\n        circumstances, a most lenient view may be taken in his case
\n        to minimise the sentence, prays the learned counsel.  It is
\n        also  submitted that, such approach may be adopted when all
\n        the other accused have been acquitted.\n<\/p>\n
        \t182.  With regard to the contention raised in terms
\n        of Section 377 Cr.P.C., we are afraid, we cannot accept it.
\n        A reading of the impugned judgment will show that there was
\n        conviction on all the counts including under Sections 366 A
\n        and 372 IPC; but no separate sentence on those  two  counts
\n        was imposed, as the court below felt that the imposition of
\n        the  maximum  sentence  provided for the offence punishable
\n        under Section 376(2)(g) would be sufficient  the  interests
\n        of justice.    When  a  person  had thus been ordered to be
\n        imprisoned for life, the court below felt that no  separate
\n        term of sentence need be passed for other offences.\n<\/p>\n
        \t183.   When there was a conviction, the court below
\n        was obliged to impose a sentence on  each  of  the  several
\n        counts  of  conviction  and  it  could,  at  the best, have
\n        directed that the sentences should run concurrently, rather
\n        than imposing no sentence, in the light of the more  severe
\n        sentence passed   for   a   graver   offence.      In  such
\n        circumstances, the State need  not  have  taken  an  appeal
\n        under Section  377  Cr.P.C.    for enhancement of sentence,
\n        because there was no sentence at all on those  two  counts.
\n        On  the other hand, when one is found guilty of an offence,
\n        he has to  suffer  the  sentence  provided  for,  for  that
\n        offence.   This  being  not  the  case  of  enhancement  of
\n        sentence, when his appeal is allowed in part setting  aside
\n        the  conviction  for  the  offence  on  which  he  had been
\n        sentenced for a longer term, he shall have to face sentence
\n        in respect of the convictions which we  are  confirming  in
\n        this appeal  filed  by  him.  Therefore, we are of the view
\n        that we must impose sentence under the said two counts.  We
\n        have such power in terms of clause (b) of Section  386,  if
\n        not clause (e) thereof.\n<\/p>\n
        \t184.  Taking into account the nature of the offence
\n        committed  and  the  plight  of  the  victim,  who had been
\n        subjected to such offence for about long 40 days,  we  feel
\n        that no  leniency need be shown to such an accused.  We are
\n        of the view that taking into account all  circumstances,  a
\n        sentence  of  rigorous imprisonment for 5 years with a fine
\n        of Rs.25,000\/-, on each of the said two counts of  offences
\n        shall meet the ends of justice in this case.  In default of
\n        payment  of  fine  as  aforesaid,  he  shall undergo simple
\n        imprisonment for one year each on those two counts.\n<\/p>\n
        \t185.   Accordingly,  we  allow  Crl.A.No.877\/02  as
\n        aforesaid,  setting  aside  the conviction of the appellant
\n        therein on all the counts except under Sections 366  A  and
\n        372  IPC and modify the sentence passed on him by the court
\n        below, as aforesaid, for the said two offences.  We make it
\n        further clear that fine, if realised, shall be paid to  the
\n        victim,  PW.1  in  Sessions  Case No.241 of 2001 leading to
\n        Crl.A.No.877\/02.  The substantive sentences of imprisonment
\n        shall run concurrently.  He will also be  entitled  to  set
\n        off under  Section 428 Cr.P.C.  The court below shall issue
\n        non-bailable warrant against him to execute the sentence.\n<\/p>\n
        \t186.  The remaining criminal appeals  arising  from
\n        S.C.No.187\/99  are  allowed setting aside the conviction of
\n        the appellants therein and vacating the order  of  sentence
\n        passed on  them.    Bail bonds executed by them shall stand
\n        cancelled.\n<\/p>\n
        \t187.  Now, we  will  have  to  consider  the  three
\n        Crl.M.Cs.  filed  by PWs.95, 96 and DW.10.  In the light of
\n        our findings as above, it cannot be said that any  of  them
\n        has gone  wrong warranting any strictures against them.  We
\n        have already  set  aside  the  impugned  judgments,  except
\n        insofar  as  the conviction under Section 366 A and 372 IPC
\n        so far as Dharmarajan  is  concerned.    Consequently,  the
\n        strictures   made   against   them   shall  stand  vacated.
\n        Crl.M.Cs.  therefore succeed.\n<\/p>\n
        \t188.  We are indebted to the counsel  appearing  in
\n        these  cases,  including  the special public prosecutor for
\n        the able assistance rendered to  us  to  dispose  of  these
\n        appeals and  Crl.M.Cs.    The  arguments have been long and
\n        meticulous.  We have been taken through  all  the  relevant
\n        inputs even  minor  ones in detail.  We place on record our
\n        indebtedness to counsel, in that regard.\n<\/p>\n
        \t189.  At the same time, we shall express  ourselves
\n        that  we  had been slightly disturbed by the attitude shown
\n        by the print and electronic media  during  the  hearing  of
\n        these appeals.   Two or three days before, there appeared a
\n        news item in more than one vernacular daily that this court
\n        had come to the conclusion that the investigation  done  by
\n        certain  officers  was  not proper, even before the hearing
\n        was complete.\n<\/p>\n
        \t190.  Any report appearing in  leading  daily  news
\n        papers  will  be  read by thousands of people and they will
\n        carry impressions on its basis.  We are afraid that if  the
\n        report  comes  on like this, the business of the court will
\n        be affected.  We  feel  that  those  who  are  making  such
\n        reports are unmindful of the repercussions of such reports.
\n        Many of the legal reporters are lawyers who are in the know
\n        of what  is happening in the court rooms.  Nobody accepts a
\n        mute judge.  A  mute  Judge  may  not  be  able  to  render
\n        justice.   A  Judge  may  have  to convey ideas and express
\n        doubts.  An effective adjudicatory machinery can work  only
\n        by conveying  ideas.   When the Judges are posing questions
\n        to one, it will, in certain situations, be couched with the
\n        contentions to the contra placed before the  court  by  his
\n        adversary.  Such questions however hard it may be, shall be
\n        answered  giving the response on that particular contention
\n        to the court.  If a reporter of a news paper  who  casually
\n        comes  to the court room and hears such questions then, and
\n        forms a wrong idea that the court has  formed  an  opinion;
\n        and  consequently  reports  his  impression  as  the  views
\n        expressed by the  court,  it  will  not  be  a  responsible
\n        journalistic  approach  with  an  anchor  on the society in
\n        general.  It may help in generating sensation, which is  of
\n        no use.    Misplaced  sensation  can drive even the earnest
\n        truth seekers away from the right path pursued by them.  Of
\n        course, the courts will certainly not be  carried  away  by
\n        such incorrect  reports  or sensation created thereby.  But
\n        the public at large should not be allowed  to  carry  wrong
\n        notion on  the  views  of the court.  Therefore, it is high
\n        time that the  journalists  reporting  the  proceedings  in
\n        court,  shall  bestow care and responsibility to report the
\n        proceedings truly and correctly.  The legal reporters  must
\n        understand  and comprehend the sublime processes that go on
\n        in courts.   Discussion,  debate,  exchange  of  ideas  and
\n        attempt  to  meet  one  reason  with  a  better one are the
\n        foundations of  that  noble  process.    Search  for  truth
\n        becomes  effective  and purposive only when the adjudicator
\n        expresses doubts and exchanges ideas.    Queries  from  the
\n        bench  and  clarifications  sought  must  be understood and
\n        their impact comprehended by the law reporters.    If  they
\n        cannot  comprehend  and  perceive  the soul of such sublime
\n        interactions  in  court,  they  must   desist   from   such
\n        reporting.\n<\/p>\n
        \t191.   We  were again disturbed that almost all the
\n        daily news papers today  have  carried  reports  about  the
\n        contents  of this judgment, which is not even complete now.
\n        Our judgment bears the date of  today.    Evil  is  that  a
\n        report on its contents was published by media yesterday and
\n        today morning.    It  is true that after hearing almost for
\n        long two months and bearing all  the  materials  with  much
\n        clarity in our minds, we thought of delivering our judgment
\n        with  the  able  assistance  of  the  counsel  and in their
\n        presence forthwith.  Moreover, it is the duty of the  court
\n        to  deliver the judgment as quickly as possible so that the
\n        parties will get the fruit of their appeal right  from  the
\n        mouth of  the court itself at once.  A pronouncement can be
\n        called a judgment only when the last word is pronounced and
\n        a date is given to that pronouncement.  Until then,  it  is
\n        possible that certain observations or conclusions in one or
\n        two  segments  already  dictated  earlier  may be modified.
\n        Moreover, in a Division Bench, it is also possible that the
\n        opinion expressed by one judge need not always be  accepted
\n        by the  other  judge,  who may form a different opinion.  A
\n        judgment of a Division Bench will be conclusive  only  when
\n        its delivery is complete and the other judge sitting in the
\n        court  concurs  with the view so expressed by such delivery
\n        by the other.   Until  then,  it  cannot  be  termed  as  a
\n        Judgment.   It  is not proper, we feel, for the responsible
\n        media people to serve half-baked judgment to the public and
\n        in case any mistake occurred in the dictation is  corrected
\n        later, it will create again a chaos as to what prompted the
\n        court  to deviate from the mistaken portion, which has been
\n        published by the media as the verdict of the court.\n<\/p>\n
        \t192.  Therefore, it is high time,  to  caution  the
\n        media,  both  print and electronic, that the proceedings in
\n        court must be published with much care  and  restraint  and
\n        only   after  ascertaining  the  truth  and  not  from  any
\n        truncated or partial version.  The sublimity of  the  court
\n        process  must  be imbibed by the reporter when he makes the
\n        report.  No harm will occur in such circumstances,  if  the
\n        publication is  delayed  by  a  day.    It  will not affect
\n        anybody’s right to information which  means  the  right  to
\n        receive correct and true information.  Report on a document
\n        like  the judgment shall be based on its complete contents.
\n        It cannot be reduced to the type  of  report  on  a  public
\n        speech or  address.   We hope that the media and the public
\n        will take this observation in its true spirit.  We  do  not
\n        in  any  way mean to curb the free press in their activity.
\n        What is required is only a responsibility with some  amount
\n        of restraint to deliver the true information to the public,
\n        so  far  as  the court proceedings, which the people of the
\n        country consider with high esteem, are concerned and not to
\n        cause embarrassment to courts.\n<\/p>\n
        \t193.  It is advisable  that  there  shall  be  some
\n        guidelines  in  that regard so that one can follow the same
\n        with clarity and certainly.\n<\/p>\n
        \t194.  We, therefore, appeal to the Press Council of
\n        India that they shall  consider  framing  some  regulations
\n        with  regard  to  the reporting of proceedings in the court
\n        including the judgment.\n<\/p>\n
        \t195.  A copy of this judgment shall be sent to  the
\n        Press Council  of  India.   In the meantime, we are hopeful
\n        that the media will conceive in true spirit the  sentiments
\n        expressed  above  and  exercise  restraints and constraints
\n        wherever necessary in  reporting  the  proceedings  of  the
\n        court.\n<\/p>\n
        \t\t\t\t(K.A.ABDUL GAFOOR)
\n        \t\t\t\t\tJUDGE.\n<\/p>\n
        tm\/nan\/sk\/-\n<\/p>\n
         CONCURRING OBSERVATIONS BY JUSTICE R.  BASANT.\n<\/p>\n
        \t196.   I  have  heard  the  judgment dictated by my
\n        learned brother immediately after conclusion  of  the  very
\n        long  arguments  which  have  spread  over  a period of two
\n        months.  I do wholly concur with the final conclusion  that
\n        the  appellants  in  all  these appeals are entitled to the
\n        benefit of doubt in respect of all offences alleged against
\n        them-except Dharmarajan the principal accused in so far  as
\n        it  relates  to the offences punishable under sections 366A
\n        and 372 of the Indian Penal code.  I do  also  concur  with
\n        the sentence  imposed  on him for the said offences.  But I
\n        feel  obliged  to  give  expression  to  a  few  disturbing
\n        thoughts  that are aroused in my mind after considering the
\n        facts in this case.\n<\/p>\n
        \t197.  We have attempted on the facts of  this  case
\n        to  draw the frontier line between consent and mere passive
\n        resignation and acquiescence.  It is  the  unavoidable  but
\n        onerous  duty  of  courts  on  the  facts  of  each case to
\n        identify, ascertain and demarcate that  real,  yet  elusive
\n        and  difficult,  line between voluntary consent and passive
\n        acqueiscence, subject of course  to  the  law  relating  to
\n        burden of  proof  and  benefit  of  doubt.    This  by  any
\n        standards has not been an easy task in this case.   We  are
\n        not unmindful of the plight of the victim lass in distress.
\n        Consent  in the law of rape need not always be a prudent or
\n        even intelligent one.  It is easy to assume that  no  minor
\n        if  prudent  and  intelligent,  and  if  her  faculties  of
\n        reasoning and sense of  righteous  behaviour  are  properly
\n        developed and intact, would choose in the Indian context to
\n        consent   to   extra   marital   and   pre  marital  sexual
\n        intercourse.  Law in its wisdom chooses  to  concede  to  a
\n        girl,  below  18 but above sixteen, the right to consent to
\n        sexual intercourse.   That  legislative  wisdom  cannot  be
\n        questioned by the courts.  The courts under the present law
\n        can  only  enqire  whether  consent  in  fact  is there and
\n        whether such consent if any is vitiated.  If  such  consent
\n        is  given  by a girl aged less than 16years the same can be
\n        ignored.  But if the minor girl is aged above 16years,  the
\n        courts  can only enquire whether such consent was there and
\n        whether such consent if any  is  vitiated  on  any  of  the
\n        grounds  enumerated  in  S.90  IPC  or  clauses  thirdly to
\n        fifthly in S.  375 IPC; not whether it was moral or  proper
\n        for the girl to give consent and for the indictee to accept
\n        and act  on  such  consent of a minor.  Her age, by itself,
\n        cannot  be  reckoned  as  sufficient  to  vitiate  consent.
\n        Criminality  and  culpability  according  to  law,  and not
\n        morality of the consent or that of the  indictee,  are  the
\n        questions before a criminal court.\n<\/p>\n
        \t198.   The  age  at  which  a  female  offspring is
\n        reckoned as available (or competent to give  the  requisite
\n        consent)  for sexual intercourse has often been reckoned as
\n        one safe  indicia  to  assess  the  culture  of  a  polity.
\n        Refined  societies  treat  their  children with concern and
\n        compassion.   In  the  march   of   civilizations   towards
\n        progress,  puberty  was  earlier reckoned as the biological
\n        rubicon which had to be crossed by a  female  child  to  be
\n        eligible  for  according  consent  in  marriage  and sexual
\n        activity.  But as civilisations advanced it was  considered
\n        atrocious  that  the  line  could be drawn at such an early
\n        age.  Hence the Indian legislature in its  wisdom  has  now
\n        drawn the line at sixteen years.\n<\/p>\n
        \t199.   To  me,  it  rebels against logic and reason
\n        that a system which considers a person aged  less  than  18
\n        years  to  be  a  child\/ minor, not competent to take major
\n        decisions affecting herself or others for  the  puposes  of
\n        the  Indian  Majority  Act,  Contract Act, Juvenile Justice
\n        Act,  Child  Marriage  Restraint  Act,  Representation   of
\n        Peoples Act — nay for even Secs.  361, 366, 368 etc of the
\n        Indian  Penal  Code, should concede to such child the right
\n        to consent to sexual intercourse.   Marry,  she  cannot  at
\n        that age  even with the consent of her parents.  She cannot
\n        be taken out of the keeping of  her  lawful  guardian  even
\n        with her  consent for lesser purposes.  But consent she can
\n        to sexual intercouse so long as she does not go out of  the
\n        keeping of  her  lawful  guardian !  Strange propositions !
\n        Is law the quintessence of the enlightened common sense  of
\n        the community?    One is compelled to lament in resignation
\n        that there can be nothing more uncommon than common sense.\n<\/p>\n
        \t200.  The Law Commission of India  did  attempt  in
\n        its  84th  report to bring up the age of consent in rape to
\n        18 years in tune with other enactments and consistent  with
\n        refined  and  modern  notions  regarding  the  concern  and
\n        compassion which  society  should  bestow  on  its  younger
\n        members.   The  consent  for intercourse allegedly given by
\n        PW3, on which aspect we have chosen to concede the  benefit
\n        of  doubt to the appellants, could easily have been ignored
\n        if that suggestion of the Commission were accepted  by  the
\n        Parliament.  But  alas  that  was  not  accepted.  With the
\n        result the age of consent in an offence of  rape  continues
\n        to be 16 years even today.\n<\/p>\n
        \t201.   In  the fiercely consumerist society that we
\n        live in, a young girl child is  also  exposed  to  so  many
\n        temptations  that  it  is difficult for the child which has
\n        not been groomed in proper atmosphere with a  proper  value
\n        system inculcated  in it, to resist such temptations.  Such
\n        children can  be  termed  deviants  but  cannot  be  merely
\n        condemned and  left  to  their fate .  They too deserve the
\n        sympathy of the system as it is no  crime  of  theirs  that
\n        they are born and forced to grow up in such atmosphere.  It
\n        is  the  duty  of  the  secular state to give the requisite
\n        education to instil a proper value system  in  such  future
\n        citizens.   That  must  be  reckoned as the incident of the
\n        constitutional obligation of the State to give free primary
\n        education.  That obligation  cannot  be  relegated  by  the
\n        State to  religious  or  optional  institutions.   They too
\n        deserve the protection of the  law  against  unintelligent,
\n        imprudent  and immoral consent being extracted from them at
\n        that early age.  No one should be permitted by law to  rely
\n        on  such alleged consent given by a minor aged less than 18
\n        years, the fond child of law and equity.  I may sum  up  by
\n        stating   that  raising  the  age  of  consent  for  sexual
\n        intercourse to 18 consistent with the stipulations  in  the
\n        saner  subsequent  enactments appears to be the unavoidable
\n        imperative before  the  system.    At  least   the   Kerala
\n        Legislature  must  take  bold  efforts to bring in suitable
\n        local amendments to S.375 of the Indian Penal Code and give
\n        leadership to others.\n<\/p>\n
        \t202.  Making of the law in a democratic  polity  is
\n        an agonisingly slow process.  The needs of the society have
\n        to be  perceived  by  the  polity.   Opinion makers have to
\n        perceive the need.  Public opinion  has  to  be  generated,
\n        Such  public opinion must get expressed on the floor of the
\n        legislature  and  must  get  translated  into   legislative
\n        action.   Legislative  stipulations  have to be enforced by
\n        the executive and interpreted by the adjudicators.   It  is
\n        only then that relief is ultimately enjoyed by the polity.\n<\/p>\n
        \t203.  Wait, we must.  But the process has to  start
\n        here and  now.   Such unfortunate incidents like the one in
\n        this case, which seem to be  too  frequent  in  the  Kerala
\n        scenario  of  late, should not be viewed merely as god sent
\n        opportunities for improving stakes in the electoral battles
\n        to follow.  They must make the enlightened polity aware  of
\n        the need  for  changes  in the law.  Meaningful discussions
\n        must be aroused.    Observations  by  courts  may  help  to
\n        accellerate the  pace of the march towards ideal laws.  The
\n        purpose of this added note is just that.\n<\/p>\n
        \tDated this the 20th day of January, 2005.\n<\/p>\n
        \t\t\t\t(JUSTICE R.  BASANT)<\/p>\n
        Nan\/<\/p>\n
                         K.A.ABDUL GAFOOR &
\n                          R.BASANT, JJ.\n<\/p>\n
                        ————————————————-\n<\/p>\n
                         Crl.A.Nos.  590, 591, 599, 600, 602, 603, 604
\n                         605, 606 to 619, 627, 632, 633, 633 and 637 of 2000
\n                         877 of 2002, Crl.M.C.  Nos.7136 of 2001,
\n                         3862 of 2002 & 4141 of 2003<\/p>\n
                         JUDGMENT<\/p>\n
                         20th January, 2005.\n<\/p>\n
                        ————————————————–<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Joseph @ Baby vs S.I. Of Police on 20 January, 2005 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL A No. 590 of 2000(B) 1. JOSEPH @ BABY … Petitioner Vs 1. S.I. OF POLICE … Respondent For Petitioner :SRI.T.G.RAJENDRAN ^ For Respondent :PUBLIC PROSECUTOR Coram The Hon’ble MR. Justice K.A.ABDUL […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-182560","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nJoseph @ Baby vs S.I. 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