കാകഃ കാകഃ, പികഃ പികഃ

Saturday, February 09, 2013

സൂര്യനെല്ലി ഹൈക്കോടതി വിധി

വിധി വായിച്ച് നോക്ക്, വായിച്ച് നോക്ക്, അതിലെല്ലാം നമ്മ പറഞ്ഞിട്ടുണ്ട് എന്നിങ്ങനെ ബസന്തിന്റെ ഒരു പ്രസംഗവും ടീവിയിൽ കേട്ടു. അതല്ലാതെ തന്നെ നമ്മുടെ സ്വന്തം ഹൈക്കോടതി വിധിച്ച വിധി ഒന്ന് തപ്പിയെടുക്കണം എന്നുണ്ടായിരുന്നു. ഒടുക്കം കണ്ടെത്തി, വായിച്ചു.

(സലീംകുമാർ പറയുന്നതു പോലെ..) സന്തോഷമായി മക്കളേ, സന്തോഷമായി!

സൂര്യനെല്ലി പെൺകുട്ടി പണ്ടേ പഠിച്ച കള്ളിയാണെന്നും, നാല്പതു ദിവസത്തിനിടയിൽ അവൾ ഓടി രക്ഷപെടാതിരുന്നത് സമ്മതലക്ഷണമാണെന്നും ഒക്കെ ധ്വനിപ്പിക്കുന്ന വിധി.  കെ.എ. അബ്ദുൾ ഗഫൂറും, ആർ. ബസന്തും ചേർന്നു് 2005 ജനുവരി 20-നു അടിച്ചു വിട്ടത്.

( കെ.എ. അബ്ദുൾ ഗഫൂറാണെന്നു തോന്നുന്നു കൂട്ടത്തിൽ  കൂടുതൽ സ്ത്രീ വിരുദ്ധൻ? although, ബസന്തും i wholly concur with the final judgment dictated by my learned brother   എന്നൊക്കെ പറഞ്ഞ് ഇളിച്ച് നില്പുണ്ട് വിധിന്യായത്തിൽ. )


 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 GAFOOR
 The Hon'ble MR. Justice R.BASANT

 Dated :     20/01/2005

: O R D E R
         K.A.  ABDUL GAFOOR &
         R. BASANT, JJ.
         - - - - - - - - - - - - - - - - - - - - - - - - - - -
         Crl.A.Nos.  590, 591, 599, 600, 602, 603, 604
         605, 606 to 619, 627, 632, 633, 633 and 637 of 2000
         877 of 2002, Crl.M.C.  Nos.7136 of 2001,
         3862 of 2002 & 4141 of 2003
         - - - - - - - - - - - - - - - - - - - - - - - - - -
         Dated this the 20th day of January, 2005
         JUDGMENT
        Abdul Gafoor, J.
         Thirty  five  accused  persons  were  convicted  in
        S.C.No.187 of  1999.    They  have  filed the above appeals
        except Crl.A.No.877 of 2002.  Crl.A.No.877 of  2002  is  by
        the sole  convicted  accused in S.C.No.241 of 2001.  At the
        outset we may mention that the facts relating to  both  the
        cases  emanate  out  of  the  same  occurrence  of  alleged
        kidnapping, wrongful confining, procuration of a minor girl
        and rape and gang rape of the victim, PW3,  in  this  case.
        PW3 was  reported  missing  from  16.1.1996.  Initially the
        case was registered under the caption `man  missing'  based
        on  information  furnished by PW1, the father of the victim
        on 16.1.96 itself.  For about 40  days,  in  spite  of  the
        investigation conducted  by  PW82,  the  local  Asst.   Sub
        Inspector, the whereabouts of the girl could not  be  found
        out.   The  girl later appeared in the office of her father
        PW1 on 26.2.1996.  Next day she gave a  statement  to  PW82
        revealing  information  about  the commission of cognizable
        offences  including   kidnapping,   wrongful   confinement,
        procuration  of  minor  girl,  rape  and  gang rape on her.
        Investigation thereafter proceeded in  that  line  and  the
        investigators  came  to  the  conclusion that altogether 45
        persons were involved.  Two of them  could  not  be  traced
        out.  Out of the remaining 43 persons, one was deleted from
        the array of  accused.   Two were absconding.  Charges were
        laid against the remaining 40 persons and the case  against
        them  was  taken on file by the Sessions Court, Kottayam as
        S.C.No.187 of 1999.  During the  trial,  the  40th  accused
        died.  Accused Nos.  23, 26, 32 and 36 were acquitted.  The
        remaining  35  accused,  convicted  on  different counts of
        offences  have  filed  the  appeals  as  mentioned,  except
        Crl.A.No.877 of 2002.  During the pendency of these appeals
        Accused  No.4,  the  appellant  in  Crl.A.No.607  of  2000,
        committed suicide.
         2.  After the  trial  of  S.C.No.187  of  1999  was
        terminated,   one   among  the  absconding  accused,  viz.,
        Dharmarajan, surrendered.  Thereafter  his  case  was  also
        committed.   It was tried as S.C.No.241 of 2001 on the same
        set of charges.  He was also convicted.    Crl.A.No.877  of
        2002 is at his instance.
         3.   In  the  first case the convicted accused were
        found guilty of all or any one  or  more  of  the  offences
        punishable  under  Sections  120-B,  363,  365,  366A, 368,
        376(1) and 376(2)(g) I.P.C.  They have  been  sentenced  to
        undergo  rigorous  imprisonment  for  terms  ranging from 4
        years to 13 years depending on the  offences  found  proved
        against them.    Sentence  of  fine  and consequent default
        sentences have also been imposed.  Fine, if  realised,  was
        directed to  be  paid  to  the  victim.    The appellant in
        Crl.A.877  of  2002  was  found  guilty  of  the   offences
        punishable  under  Sections  120-B,  365,  363,  366A, 368,
        376(2)(g), 372 and 392 I.P.C.  He was sentenced to  undergo
        life  imprisonment for the offence punishable under Section
        376(2)(g) alone.  So, no separate sentence was  imposed  on
        any other count.
         4.   The  accused  will  be described as arrayed in
        S.C.No.187 of 1999 and the sole accused  in  S.C.No.877  of
        2002 will be mentioned by his name Dharmarajan hereafter in
        this judgment  for  the sake of convenience.  The exhibits,
        witnesses and MOs, unless otherwise specified, are referred
        to as in S.C.No.187 of 1999.
         5.  The prosecution case is that PW3, as  a  result
        of a   conspiracy  hatched  by  accused  Nos.    1,  2  and
        Dharmarajan,  was  persuaded,  induced  and  kidnapped   by
        accused No.1 from the lawful guardianship of her parents to
        go  away  from  the  school hostel in Munnar to join him at
        Adimali  and  thereafter  to   go   along   with   him   to
        Kothamangalam at about  4.30  P.M..   on 16.1.1996.  Before
        reaching there,  he  disappeared.     In   such   perplexed
        situation, late  in  the  evening  at  about 7.30 P.M.  PW3
        decided to go from Kothamangalam to her  mother's  sister's
        house at   Kottayam.      She  boarded  a  private  bus  to
        Muvattupuzha.  She noticed accused No.2, Usha, in that bus.
        Thereafter she alighted at  Muvattupuzha  and  went  in  an
        autorickshaw to  K.S.R.T.C.   bus station there, to catch a
        bus to Kottayam.  She boarded a Trivandrum  Fast  Passenger
        bus  wherein also she noticed the presence of accused No.2.
        She got down at Kottayam bus stand.  She was frightened  to
        go through  the bylanes to reach her aunt there.  Therefore
        she decided to catch a bus to Mundakkayam so as  to  go  to
        her uncle's  house.    But  there was no bus to Mundakkayam
        during that night.  It  was  at  that  time,  accused  No.2
        approached her  calling her name.  Later she introduced PW3
        to one person by name Sreekumar, whom she later realised as
        Dharmarajan.   He  promised  to  take  her  to  Mundakayam.
        Thereafter Dharmarajan took her to Metro lodge near the bus
        stand where, he told her, his mother was staying.  With the
        hope  that  she  would  be  taken  to  her uncle's house at
        Mundakayam, she  followed  Dharmarajan.    But  Dharmarajan
        raped her during that night in the lodge room.  On the next
        day  morning  she was taken to Ernakulam in a transport bus
        and thereafter to different  places  like  Kumali,  Kambam,
        Palakkad   and  Vanimel  at  Kozhikode,  again  to  Kumali,
        Muvattupuzha,  Aluva,   Theni,   Kanyakumari,   Trivandrum,
        Kuravilangad,  Kottayam,  again to Kumali, Muvattupuzha and
        again to Kottayam, still again to  Theni,  Kumali,  Kambam,
        again  to  Kumali, Kottayam and to Muvattupuzha and finally
        enfreed her on the morning of 26.2.1996.  In  the  meantime
        she   was   presented  to  several  persons  including  the
        appellants/convicted accused, except accused Nos.   2,  17,
        38 and  39,  who  committed  rape or gang rape on her.  The
        said four persons,  according  to  the  prosecution,  aided
        others to  commit  the said offences.  They also wrongfully
        confined her.  PW3 had, as admitted by both sides,  crossed
        the  age  of  16,  but  had  not  attained 18 years, at the
        relevant time.
         6.  The evidence in the first case consists of  the
        oral testimony of PWs.1 to 97 and Exts.P1 to P182 and MOs.1
        to 21 on the side of the prosecution.  The defence evidence
        consists of the oral evidence of DWs 1 to 10 and Exts.D1 to
        D30.   PWs  1  to  57 were examined and Exts.P1 to 102 were
        marked on the side of the prosecution in the  latter  case.
        MOs 1  to 21 were also identified.  The defence evidence in
        that case consists of the oral testimony of DWs 1 to 6  and
        Exts.D1  to D43, apart from the witnesses' exhibits 1 to 40
        and court exhibit C1.    The  court  below  considered  the
        evidence  on  record and convicted the accused as mentioned
        above.
         7.   When  we scanned through the evidence we could
        understand that several new materials could be brought  out
        by  the  accused to strengthen their defence, in the second
        case.  On going through  the  said  evidence  we  are  also
        convinced that few of such pieces of evidence could be used
        by  the  accused in the first case as well, for the purpose
        of their effective defence.  Accordingly,  as  these  cases
        arise  out  of the same occurrence, we are of the view that
        the evidence in both the cases can be  considered  together
        for  the  purpose  of  finding  the  truth  in  this  case.
        Whatever available in these cases in favour of the  accused
        shall be made use of in their favour, irrespective of where
        it was let in, but not vice versa.
         8.  It is contended by  the  appellants  that  they
        have  been  falsely implicated in the case due to political
        enmity.  Few of them are political workers or interested in
        politics.  There are others also who are  not  involved  in
        politics.  Sufficient materials have not been placed by the
        accused to show that they have been thus falsely implicated
        with political  motive.   There is nothing to show that any
        of the accused was holding any such  position  of  eminence
        politically  or  to  justify  an  inference  that they were
        implicated falsely on political considerations.
         9.  It is  submitted  by  the  appellants  that  no
        conspiracy is  proved  in  this  case.   There is no cogent
        evidence in that regard.  On the other hand the letter said
        to be written by PW3 to DW3 in the second  case  which  has
        been  suppressed by the prosecution will cut at the root of
        the allegation of conspiracy, it is contended.
         10.  The other contention raised is that  there  is
        no  reliable  evidence  in  this case to act upon and enter
        conviction for serious offences as mentioned  above.    The
        only  material and vital evidence available is that of PW3,
        who cannot be reckoned  as  a  trustworthy  witness.    Her
        evidence  deserves  careful  scrutiny,  because of her past
        conduct of squandering the amount given by her parents  for
        remitting  hostel  fees  and  even  daring,  admittedly, to
        pledge her ornaments on 1.1.1996.   Certain  other  aspects
        were   also   brought  to  our  notice  to  elucidate  this
        contention.
         11.  It is further contended that even  if  PW3  is
        found to be believable otherwise, a conjoint reading of her
        evidence  in  toto  will show that she was not an unwilling
        partner for  intercourse.    So  far  as  the  accused  are
        concerned,  there  was no resistance from her part, so that
        those who approached her could discern  that  she  was  not
        willing  for  intercourse  or  there was absence of consent
        from the part of PW3.  Absence of consent on  the  part  of
        PW3  has  not  been  satisfactorily  proved in this case to
        bring home the guilt of the accused under Section 376(1) or
        376(2)(g).  It is further contended that the  unwillingness
        now  spoken  to  by PW3 before the court below is really an
        excuse found out by her to save her face in the family  and
        among  the  relatives  for her long absence of 40 days from
        her house.    It  is  further  submitted  that  the  normal
        approach  adopted  for  appreciating the evidence of a rape
        victim cannot be applied in this case, taking into  account
        the incidents  occurred  in  those 40 days.  Therefore, the
        court should always seek corroboration for the evidence  of
        PW3 before finding the accused guilty of the offences under
        Sections 376(1)  or  376(2)(g).  In this regard the counsel
        for the appellants have relied on the decisions reported in
        Kali Ram v.  State of Himachal  Pradesh  (1973  SCC  (Cri.)
        1048), Deelip  Singh  @  Dilip Kumar v.  State of Bihar (JT
        2004 (9) SC 469), State of Maharashtra v.    Chandraprakash
        Kewalchand Jain (AIR 1990 SC 658), Sudhansu Sekhar Sahoo v.
        State  of  Orissa (2003 Crl.LJ 4920), Gopi Shanker and ors.
        v.  State of Rajasthan (AIR 1967 Rajasthan 159), Kuldeep K.
        Mahato v.  State of Bihar (1998) 6 SCC  420),  Jagannivasan
        v.  State of Kerala (1995 Supp (3) SCC 204), Jinish Lal Sah
        v.   State  of Bihar (2003) 1 SCC 605), Vimal Suresh Kamble
        v.  Chaluverapinake Apal S.P.  & anr.  (2003)  3  SCC  175)
        and S.A.  Nanjundeswara  v.  M.S.Varlak Agrotech Pvt.  Ltd.
        (AIR 2002 SC 477).  The consent is  thus  discernible  from
        the conduct  of  PW3;  submit  the appellants' counsel.  No
        rape punishable under Section 376(1) is proved.
         12.   It  is  contended  that  even  going  by  the
        evidence  of  PW3,  the  offence  punishable  under Section
        376(2)(g) has not been made out.  No jointness in action by
        several persons alleged to have raped  her  on  any  single
        occasion had  been  spoken  to  by her.  In this regard the
        decisions reported in Ashok Kumar v.  State of Haryana (AIR
        2003 SC 777), Devendra Das and ors.  v.  The State of Bihar
        (1999 Crl.LJ 4805), Jai Bhagwan  &  ors.    v.    State  of
        Haryana (1999)  3  SCC  102), State of Orissa v.  Arjun Das
        Agrawal & anr.  (1999) 8 SCC 154) and Ashok Kumar v.  State
        of Haryana (2003) 2 SCC 143) are relied on.  It is  further
        contended  that  apart  from  the  evidence of PW3 the only
        other   evidence   introduced   by   the   prosecution   to
        substantiate  the  offence  under Section 376(2)(g) is that
        coming from the mouth of PW8.  She was really accused No.42
        in the first case and was arrested and remanded.   She  was
        later  transformed  as  a prosecution witness, in reward of
        her giving evidence against the accused.   Such  a  witness
        cannot  be  treated  as trustworthy, the appellants submit,
        relying on the decision reported in Vemireddy  Satyanarayan
        Reddy & ors.    v.  State of Hyderabad (A.I.R.1956 SC 379).
        Thus there is no evidence to  fasten  guilt  under  Section
        376(2)(g), they submit.
         13.   It  is  further  contended  that  the  entire
        investigation in this case was totally unfair,  suppressing
        material   particulars   gathered   in  the  investigation.
        Certain material witnesses cited  by  the  prosecution  had
        also  been  withheld  and withdrawn without examining them.
        Even one among the  investigating  officers  had  not  been
        examined in  the  second  case.    He  had to be cited as a
        defence witness.  PW3 did allegedly  have  some  connection
        with  the  accused in a case relating to the death of a nun
        in a convent and she had been questioned  in  that  regard.
        The amount given by her father for remitting the hostel fee
        was  allegedly  made  use  of  to pay to an accused in that
        case.  This ought to have been spoken to by  DW6,  who  was
        questioned by  police.    But  she  was  given  up  by  the
        prosecution.  It is also submitted based on the evidence of
        DW3, Kochumon, in the second case who spoke about a  letter
        written  by  PW3  on the day when she disappeared, that the
        entire case of  conspiracy  projected  by  the  prosecution
        falls down.  Suppression of those relevant materials speaks
        a  lot  about  the  unfairness  shown  by the investigating
        agency and such unfairness has resulted in prejudice so far
        as the accused are concerned.  The  decisions  reported  in
        Rampal Pithwa Rahidass  &  ors.    v.  State of Maharashtra
        (1994 Crl.LJ 2320) and Vemireddey Satyanarayan Reddy & ors.
        v.  State of Hyderabad (AIR 1956 SC 379) are relied  on  in
        this regard.
         14.   It  is  further contended that apart from the
        unfairness shown in the investigation  and  the  consequent
        unfairness   in   the   trial,  the  prosecution  also  had
        suppressed the relevant materials  which  the  accused  are
        entitled  in  terms  of the Code, thereby disabling them to
        mould their defence properly from the initial stage of  the
        trial.   It is submitted and is borne out from the evidence
        that at least 10 statements, including one disputed by  the
        prosecution,   had   been  obtained  from  PW3  by  various
        investigating officers in this case.   According  to  PW82,
        who  started the investigation in the case when Ext.P1 F.I.
        statement was  furnished  and   Ext.P1(a)   F.I.R.      was
        registered,  PW3  on her reappearance had given a statement
        to him on 27.2.1996, which he had written down in  his  own
        hand.   At  the  same  time, it is submitted relying on the
        evidence of DW10 that there was yet another statement taken
        from PW3 on the same date by PW82 himself.   This  was  not
        disclosed to  the  court.   When PW95 had been in charge of
        the investigation he had also  recorded  another  statement
        dt.28.2.1996 from  PW3.    Apart from these two statements,
        three statements had been recorded on 8.3.96,  10.3.96  and
        15.3.96  by  PW93,  who conducted the investigation between
        27.2.96 and  8.3.96.    Two  statements   were   thereafter
        recorded  by  PW91, who continued the investigation and two
        more  statements  were  recorded  by  PW97,   who   finally
        investigated the  case.  It is submitted that the statement
        of PW3 initially recorded by PW82, that recorded by PW95 on
        28.2.96 and the three statements recorded by  PW93,  Circle
        Inspector,  Devicolam,  were  not  produced before court in
        time or furnished to the accused, as enjoined under Section
        173(5) and 207(iii)   Cr.P.C.      respectively.      Thus,
        suppression of details spoken to by the victim in this case
        really  prejudiced  the  accused  in shaping their defence.
        Those statements stated to be recorded by PW93  on  8.3.96,
        10.3.96  and  15.3.96  and  the  statements  stated  to  be
        recorded by PW95 on 28.2.1996  were  produced  at  a  later
        stage in  the  first case.  That was far later than PW3 had
        spoken to about  the  incident  and  been  cross  examined.
        Though  the  prosecution  offered  PW3  again  to  be cross
        examined  on  the  basis  of  the  materials  so  belatedly
        produced,  it  was  not a real and effective opportunity to
        defend the allegations, as PW3 had made up  her  mind  when
        she had  been  already  cross examined extensively.  It was
        too late for the accused to mould or remould their defence.
        Such belated production of documents in court and  offering
        PW3  for  further  examination are not sufficient to render
        any real opportunity to the accused to mould their  defence
        at the  initial  stage.    It is further submitted that the
        mere production of these documents  is  not  sufficient  to
        satisfy the  requirement  of  Section 207(iii) Cr.P.C.  The
        accused have to be furnished with the copies thereof.    It
        has not  been  done.  They could not and did not, therefore
        avail of the opportunity to cross examine PW3 further.   So
        suppression  of  these  materials indicates absence of fair
        trial, which prejudiced the  accused  from  moulding  their
        defence at  the  initial  stage.  Such prejudice percolated
        throughout the trial.  Thus the accused had been  denied  a
        fair opportunity to defend themselves, it is submitted.
         15.   It  is  their  further  case  that  no  first
        information report as could  be  called  so  in  law  under
        Section 154 Cr.P.C.    is  available  in this case.  Ext.P1
        F.I.  statement did not reveal commission of any cognizable
        offence.  A reading of Ext.P1 will disclose that  even  the
        complaint  of  PW1,  the father of the victim, was that she
        had gone away from the hostel.   `I  do  not  know  why  my
        daughter  had run away' is the specific averment in Ext.P1.
        He had no case that she had been kidnapped by  any  one  or
        that he had suspected so.  Exts.P1 and P1(a) cannot satisfy
        the requirements  of an F.I.  statement in terms of Section
        154 Cr.P.C., for commencement of investigation  in  a  case
        relating to  cognizable offence.  Cognizable offence, if at
        all, was revealed for the first  time  when  PW3  had  been
        questioned by  PW82,  the  Assistant S.I.  of Munnar police
        station on 27.2.1996.  Her statement  ought  to  have  been
        registered as   F.I.R.     In  the  absence  of  that,  the
        investigation  conducted  cannot  be  said   to   be   fair
        investigation in  this  case.   Absence of an F.I.R., which
        can be legally acted upon, vitiates the trial in this case.
        In that regard the decisions  in  The  State  of  Assam  v.
        Upendra Nath Rajkhowa (1975 Crl.LJ 354), Aru Kumar Banerjee
        & anr.   v.    The  State  (AIR 1962 Calcutta 504) and Mani
        Mohan Ghose v.  Emperor (AIR 1931 Calcutta 745) are  relied
        on.
         16.   It  is  also  submitted  that  had the police
        followed the right, fair, proper and legal method mentioned
        in Section 154 Cr.P.C., the controversy as to which of  the
        two statements  dt.    27.2.1996  had  been really recorded
        would not have arisen at all.  The  statement  so  recorded
        revealing  commission  of cognizable offences ought to have
        been,  in  law,  forwarded  to  the  concerned   Magistrate
        forthwith  and  there  would  not  have been any dispute on
        that.
         17.  It is submitted by the learned Special  Public
        Prosecutor  in  answer  to  the  above  contentions  of the
        appellants that the conspiracy had been proved in this case
        by the evidence of PW3, PW66, MO1,  PW59,  though  hostile,
        PW60  and  Exts.P115  trip  sheet of the buses in which the
        victim girl travelled  from  Munnar  to  Adimali  and  from
        Adimali to Kothamangalam produced by PW78 R.T.O.  PW3 moved
        from  the  school  campus  to  Adimali  and  thereafter  to
        Kothamangalam only  at  the  persuasion  of  accused  No.1.
        Intimacy  with  him was revealed by the handing over of MO1
        photo album.  That the first  accused  had  a  conversation
        with  the  second  accused with respect to the arrival of a
        girl was categorically spoken to by PW60,  an  autorickshaw
        driver.   In such circumstances the conspiracy in this case
        stands proved.  The first accused induced PW3 to  come  out
        of  the  school campus and kidnapped her, so that she could
        be  placed,  through  accused  No.2,  in   the   hands   of
        Dharmarajan, who was waiting, as is revealed by Ext.P57, in
        Metro Lodge right from 2.1.1996.
         18.   The  Special Public Prosecutor also draws our
        attention to the version spoken to  by  PW3  regarding  the
        attempt  to  mortgage  her  ornaments  and  spending of the
        amount given by her  parents  to  remit  the  hostel  fees.
        According to him, PW3 wanted to raise money only to pay the
        first accused to avoid him.  MO1 album was taken by accused
        No.1 from  PW66  to  give  it  to  PW3.    This reveals his
        intimacy with PW3.  Thus involvement of the  first  accused
        and  his intimacy with PW3, to kidnap her are manifest from
        this evidence.  Non-examination of Kochumon,  DW3,  in  the
        second  case, by the prosecution will not be fatal to prove
        the conspiracy.  It is also submitted that even though  the
        police  did  not  find out the letter said to be written by
        PW3 as spoken to by DW3, it will not affect the prosecution
        case.  Therefore the conspiracy hatched by accused Nos.  1,
        2 and Dharmarajan stands proved.  The further acts  of  the
        remaining  accused were in continuation of this conspiracy.
        So they have also continued the conspiracy  to  commit  the
        offences alleged.    Thus there was real conspiracy in this
        case  to  commit  various  offences  charged  against   the
        accused.
         19.   It is further contended by the Special Public
        Prosecutor that there is no reason  to  disbelieve  PW3  at
        all.  PW3  is the victim of a sex offence.  Appreciation of
        evidence  in  rape  cases  shall  be  different  from   the
        appreciation  of  evidence of the victim in any other case.
        In this regard he has relied on the decisions  reported  in
        State of  Maharashtra  v.    Chandraprakash Kewalchand Jain
        (1990 SCC (Cri) 210), State of Maharashtra v.  Kalu  Sivram
        Jagtap &  ors.  (1980 SCC (Cri) 946) and State of Punjab v.
        Ramdev Singh (AIR 2004 SC 1290).  It is  further  submitted
        that  when  the evidence of PW3 is viewed in that angle, it
        can be seen that she can be believed.  It is  evident  that
        there  was total absence of consent and PW3 was not willing
        for intercourse with any  of  the  accused  in  this  case.
        Absence  of  consent was, therefore, successfully proved by
        the prosecution.
         20.  It is further contended that consent is to  be
        proved by  the  accused.    In this respect the decision in
        State of Himachal Pradesh v.  Shree Kant Shekari (AIR  2004
        SC 4404) is relied on.  Even if there was consent, it shall
        be  further  proved  that  the  consent so expressed by the
        victim is one made voluntarily and consciously and based on
        reasons after understanding the good and evil of the act to
        be done by the person who so consents.  Reliance is  placed
        on  the  decision  reported  in  Rao Harnarain Singh Sheoji
        Singh & ors.  v.  The state (AIR 1958 Punjab 123) and  Uday
        v.  State of Karnataka (AIR 2003 SC 1639).
         21.   It  is  further contended that any absence of
        sign of resistance by the victim shall not be a reason  for
        presuming consent.     This  contention  is  urged  placing
        reliance on the decision in State of  Himachal  Pradesh  v.
        Mange Ram  (2000  Crl.LJ 4027).  It is further submitted by
        the learned  Public  Prosecutor  placing  reliance  on  the
        decision in State  of Maharashtra v.  Prakash & anr.  (1992
        Crl.LJ 1924) that even in the case of  prostitutes  consent
        is an  essential requirement.  Otherwise, it will amount to
        rape.  There is no  reason  to  disbelieve  PW3,  when  she
        submits  that  the accused had intercourse with her without
        her consent, he contends.  He therefore  submits  that  the
        fact of rape by several accused as alleged in this case has
        been  proved  by  the  evidence of PW3 who speaks about her
        express unwillingness and absence of consent.
         22.  It is contended that the theory of consent  by
        such  a  young  girl  aged less than 17 years is inherently
        improbable.  Whey should she consent?  A  girl  could  have
        consented  to sexual relationship only out of love, lust or
        lure for money.  PW3 had none of  these.    Her  detractors
        even admittedly  had  no love for her.  There is nothing to
        show that she was prompted by any such uncontrollable  lust
        to agree  to  such  intercourses.    Her  parents were both
        employed.  She had no reason to crave for money.  In  these
        circumstances  she  could not have consented for any of the
        three possible reasons.  Her statement  that  she  did  not
        consent must, in these circumstances, be accepted, contends
        the learned Special Public Prosecutor.
         23.   It  is  his  further contention that there is
        evidence from PW3 revealing the situations of rape by  more
        than  one  person  on a single day at a particular time and
        such persons had come together to approach PW3.   Therefore
        gang rape punishable under Section 376(2)(g) is also proved
        in this  case.  There need not be completed acts of rape by
        each and  every  rapist  involved  in  gang  rape.     Some
        involvement is sufficient.  The Public Prosecutor relies on
        the decisions in  Pramod  Mahto  & ors.  v.  State of Bihar
        (1990 SCC (Cri) 206), Justus v.  State of Kerala (1987  (2)
        KLT 330),  Moijullah  alias  Puttan  v.  State of Rajasthan
        (AIR 2004 SC 3186)  and  Bhupinder  Sharma  v.    State  of
        Himachal Pradesh   (AIR  2003  SC  468).    It  is  further
        contended that when PW3 deposed that more persons had raped
        her together, the provisions contained in Section 114 A  of
        the  Evidence  Act  comes  to play and therefore absence of
        consent has to be presumed.  Thus this is a case where gang
        rape is conclusively proved.  The decision  in  Bodhisattwa
        Gautam v.  Subhra Chakraborthy (Ms) (1996 SCC (Cri) 133) is
        also relied  on.    Presumption under Section 114A is hence
        available, it is contended.
         24.  Replying  to  the  contentions  urged  by  the
        appellants   with   regard   to   the   unfair   manner  of
        trial/investigation resulting in prejudice, it is submitted
        by the Special Public Prosecutor that in the first case all
        the statements taken from PW3  by  different  investigating
        officers,  except the one disputed by the prosecution, were
        produced though later.   The  initial  prejudice,  if  any,
        caused  is  thus  wiped  off and the accused had sufficient
        opportunity to cross examine PW3 with  reference  to  those
        statements.   So  there was no prejudice in the first case.
        In the second case also the entire statements,  except  the
        disputed  one,  said to be recorded on 27.2.1996, have been
        supplied to the accused.  So in that case also there was no
        prejudice.  Every accused had opportunity for his full  say
        when copies were so produced.
         25.   It  is  further  contended  that the disputed
        statement said to be written by DW10 in the first  case  is
        one  manipulated  to  screen  off  several accused with the
        involvement of his superior officer, PW95.  So the admitted
        statement of PW3 recorded by PW82 now forming part  of  the
        C.D.    records   is   the   real   and   true   statement.
        Non-production or non-furnishing of the disputed  statement
        dt.   27.2.96  allegedly  recorded  from  PW3 is not one of
        relevance as the said statement is not recorded in terms of
        Section 161 and is not liable to be produced  in  court  in
        terms  of  Section 173(5) or to be furnished to the accused
        under Section 207(iii) Cr.P.C.  So there  was  no  occasion
        for any prejudice in this case.
         26.   It is submitted by the Public Prosecutor that
        PW82 had, when  PW1,  father  of  the  girl  furnished  the
        information   regarding   the   missing  of  his  daughter,
        registered an F.I.R.  Ext.P1(a) and forwarded  it  promptly
        to the  Magistrate  court concerned.  That was necessary in
        the light of  the  instructions  contained  in  the  Police
        Manual.   That  is the long established practice adopted by
        the  police  whenever  a  man  missing  case  is  reported.
        Depending upon the facts revealed in the investigation, the
        case  will  be  moulded  based  on  the  very  same  F.I.R.
        Appropriate further reports will be filed before  Court  by
        the Investigators.  No fresh F.I.R.  is filed.  That is the
        practice followed.  In this case, when PW3 reappeared after
        40  days  on  26.2.1996,  her statement was recorded on the
        next day, which revealed commission of  certain  cognizable
        offences.    It   was   recorded,   in  the  light  of  the
        registration of Ext.P1(a) F.I.R.  earlier on the  basis  of
        the information furnished by PW1, only as a statement under
        Section 161  Cr.P.C.    That  cannot in any way vitiate the
        investigation or the trial.    No  prejudice  has  resulted
        therefrom.   The  police  was  only  following the practice
        hither to followed based  on  the  Police  Manual  and  the
        instructions contained therein.
         27.   In  the  light  of these rival contentions by
        either party we have to examine the evidence in  this  case
        and the situations spoken to by PW3 revealing any offence.
         28.    As   already  mentioned  above,  the  entire
        prosecution case is based on a conspiracy allegedly hatched
        by accused Nos.  1, 2 and Dharmarajan some  time  prior  to
        16.1.1996  to  kidnap PW3, to move her from place to place,
        to confine her and  to  procure  her  for  prostitution  by
        others,  to sell or buy her and to commit rape or gang rape
        on her.    So  the  conspiracy  is  the  beginning  of  the
        occurrence.   Necessarily the conspiracy has to be examined
        first.
         29.  As already mentioned above, PW3  speaks  about
        the intimacy developed by her towards accused No.1, who was
        a  Cleaner/Checker  in  a  bus  in which she used to travel
        while attending tuition classes.   According  to  her,  MO1
        album  which  she  had  brought  to  show  her friend, PW66
        Fathima, came to be in the hands of accused No.1, when PW66
        brought it back to return to PW3, who was not available  in
        the bus  on  that day.  The first accused took it from PW66
        promising to hand it over to PW3 later.  The photographs in
        MO1 were threatened to be made use  of  to  blackmail  PW3.
        She  was  threatened that unless she accompanied him, those
        photographs would be made use of to tarnish her as well  as
        her parents.    PW60,  an  autorickshaw driver available in
        Adimali bus stand, speaks about  the  conversation  between
        accused Nos.    1  and  2 on 16.1.96, about the anticipated
        arrival of a girl.   He  had  seen  PW3  arriving,  shortly
        thereafter,  in  the  bus  named  "Anjali"  at  Adimali and
        accused No.1 accompanying PW3 to the bus stand and  accused
        No.2 following  them.  So, the evidence of PW60 reveals the
        case of conspiracy.  The timing of the  bus  in  which  PW3
        travelled,  had  been  spoken  to  by  PW78 on the basis of
        Ext.P115 trip sheet produced by him.  It  is  a  supporting
        evidence on  conspiracy  to  corroborate  PW3.  This is the
        prosecution case and evidence on conspiracy.
         30.  The main trump-card of the defence to  torpedo
        this  conspiracy  is the evidence of DW3 and Ext.X13 letter
        dt.  14.3.1996  produced  from  the  custody  of  a  police
        officer  upon  summons  from the court, in the second case.
        DW3 is one Kochumon.  According to him, he was  the  driver
        of a  bus  plying  between  Alwaye Sooryanelli.  On 16.1.96
        while his bus was on its trip, another one coming from  the
        opposite  direction stopped as they were passing each other
        and the driver in the said bus one Joy handed over a letter
        to him.  He put it in his pocket and later read it when his
        day's work was over at Sooryanelli.  He could realise  that
        it  was a letter written by PW3 who had regularly travelled
        earlier in his bus.  There was such a friendly relationship
        between PW3 and DW3, an employee in a bus.    She  felt  it
        necessary to  write  such a letter to DW3.  The contents of
        the letter  are  also  almost  spoken  to  by  him  in  his
        evidence.   The  contents  do not make reference to accused
        No.1, as can be ascertained from the evidence of DW3.
         31.  Ext.X13 is an official document written by the
        Dy.S.P., Munnar to S.P.  of Idukki with regard  to  certain
        reports  in  Crime  No.6 of 1996 giving rise to the present
        case.  It reveals that the evidence given by DW3  regarding
        the letter written by PW3 is true.
         32.   When  there  is  a  letter  contemporaneously
        written by PW3 on the day when  she  disappeared  from  the
        campus,  it  must  in all probability reveal why she had so
        disappeared.   It  must  also  reveal  whether  there   was
        involvement of  any  one  including  the first accused.  It
        should show whether she was going with the first accused as
        induced by him or whether she had been leaving her  parents
        of her  own.    It was the suggestion of the accused during
        cross examination that PW3, as of her  own,  had  left  her
        house, because  of  certain  domestic  reasons.   There was
        subsisting quarrel between her parents.   It  is  suggested
        that the  home  environment was unsatisfactory.  Father was
        an alcoholic and mother was deviant, it was suggested.
         33.  In order to cross check the version of DW3, as
        he was seen to have been questioned by PW82 as revealed  by
        Ext.X13,  we  chose  to  exercise  our powers under Section
        172(2) Cr.P.C.  We perused the case diary from the hands of
        the Public Prosecutor as to whether the said Kochumon, DW3,
        had spoken to the  police  about  the  letter  said  to  be
        written by  PW3.  It is also revealed from Ext.X13 that the
        police has questioned the driver Joy who  handed  over  the
        letter to  DW3,  also.    Ext.X13  also  speaks  about  the
        contents of the letter.  We are satisfied that existence of
        the letter written by  PW3  was  revealed  by  DW3  to  the
        police.
         34.   When  there  is such a contemporaneous letter
        written by PW3, necessarily it will reveal the  reason  for
        her disappearance.    Existence of that letter was known to
        the police as revealed by DW3 and Ext.X13.  But none of the
        investigating officers has spoken about  the  existence  of
        the  letter or their effort or incapability to trace it out
        when they gave evidence in the court  below.    The  public
        prosecutor was also cross examining DW3, as if there was no
        such letter.    Thus the prosecution was really suppressing
        that letter, though known to them as revealed by DW3 and in
        Ext.X13.  It has to be borne in mind that the investigating
        officers did not move their little finger to find out  this
        letter  and  to ascertain the reason revealed therefrom for
        the disappearance of PW3.  Or else they were withholding it
        from court and the accused.  According to DW3 he  entrusted
        the letter to the police.  Necessarily the evidence of DW3,
        the  contents  of  the letter spoken to by him and Ext.X13,
        which refers to that letter do create a  doubt  as  to  the
        reason for the disappearance of PW3.  That PW3 had left the
        campus as  of  her own cannot be, therefore, ruled out.  In
        such circumstances it cannot be  said,  conclusively,  that
        PW3  was  kidnapped  consequent  to a conspiracy hatched by
        accused Nos.  1, 2 and Dharmarajan.
         35.  True, as contended by the  Public  Prosecutor,
        there is  evidence  of  PWs.59 and 60.  PW59 turned hostile
        completely and nothing beneficial to  the  prosecution  has
        come out  from him.  PW60 is an autorickshaw driver who has
        spoken about the conversation between accused Nos.  1 and 2
        about  the  arrival  of  PW3  on  16.1.1996,  the  date  of
        commencement  of  the  series  of occurrences in this case.
        That witness was found out and questioned far belatedly  on
        23.7.1996 by  PW97.    By  that  time  this case had become
        sensational.   PW60  also  did  not   volunteer   to   give
        information to  the  police  promptly.  He offers no cogent
        explanation for this.  There had  been  five  Investigating
        Officers earlier than PW97.  None of them had any knowledge
        about the existence of such a witness and no one had reason
        to  doubt so obviously because of their knowledge about the
        letter written by  PW3,  mentioned  in  Ext.X13.    So  the
        belated  questioning  of PW60 and bringing that evidence to
        support  conspiracy  do  arouse  suspicion  and  cannot  be
        sufficient to  fasten  guilt  for conspiracy.  On the other
        hand, the evidence of DW3 in the second case  speaks  about
        the  contents  of the letter said to be written by PW3 that
        she had gone out of her house as  of  her  own.    In  this
        context it will not be inapposite to note that the earliest
        versions indicate that PW3 was requested to "go for a trip"
        by her  lover and not to elope and get married.  PW1 or PW3
        has not been asked anything about the said  letter  by  the
        prosecution.   That  course of conduct must certainly cause
        suspicion.  The clear indication is that the  investigators
        were attempting to black out all indications about the said
        letter.
         36.   The  evidence  of  a  person  over  hearing a
        conversation is too weak an evidence to prove conspiracy as
        held by the Supreme Court in  Darshan  Singh  &  ors.    v.
        State of  Punjab  (AIR  1983  SC  554).    The  Apex  Court
        observed:

         "On the question of conspiracy, the prosecution led
                the usual kind of puerile evidence, as for example,
                of someone over-hearing something while on  way  to
                answering a  call  of  nature.  Here the strain was
                changed by alleging that Suran Singh (PW27) heard a
                most  damaging  conversation  between  the  accused
                while he was negotiating the purchase of a tractor.
                Evidence  was  also  produced to show that a wallet
                was found at the scene  of  offence,  containing  a
                letter  (Ext.P53)  sent  by  one  of the accused to
                another  of  them,  discussing   the   threads   of
                conspiracy."
        It is not safe to rely on PW60, as the alleged conspirators
        would  not have spoken about their plan so loudly in a busy
        bus stand, so that it could be heard by others, so  clearly
        as spoken  to by PW60.  So the alleged conversation between
        accused Nos.  1 and 2 as perceived by PW60, and kept it  to
        himself till PW97 came into the picture belatedly could not
        be relied  on  to  prove conspiracy.  That evidence revolts
        against commonsense and prudence.
         37.  More over, PW60 is  a  witness  found  out  by
        PW97, far  belatedly.   On that reason also no reliance can
        be safely placed on him.   The  Apex  Court  in  Vijayabhai
        Bhanabhai Patel  v.    Navnitbhai  Nathubhai  Patel  & ors.
        (2004) SCC (Cri) 2032) observed as follows:


         "The delay in questioning these  witnesses  by  the
                investigation  officer  is a serious mistake on the
                part of the prosecution.  We do not think that  the
                High Court erred in disbelieving these witnesses."
         38.   It  has  come  out in the second case that as
        PW59, who was also introduced to prove  conspiracy,  turned
        hostile  to the prosecution, he had to face harassment from
        police and had to move a police  protection  writ  petition
        before this  court.    (See  Ext.D24  in  the second case).
        These facts relating to the threat to PW59 from  police  as
        he  did not support the prosecution case were not available
        in the first case  when  the  court  below  considered  the
        evidence on   conspiracy.      This  fact  cannot  also  be
        neglected.
         39.  Added to this is the alleged round about  turn
        by  PW60  discussed  in para 25 of the impugned judgment in
        the first  case.    After  PW60  had  given   evidence   on
        conspiracy  in  the  first  case,  he wrote a letter to the
        accused about the circumstances that led him to speak so in
        court.  Later he himself filed a petition alleging that  he
        was made  to  write  such a letter.  On the face of the new
        facts brought in as regards PW59 in the second  case,  this
        somersault  by PW60 shakes the credence of his evidence; in
        the light of the decision in Darshan Singh referred  supra.
        Thus his evidence on conspiracy is not believable.
         40.  There is a further fact that PW3, who had left
        the  campus  allegedly  upon  the  persuasions from accused
        No.1, had never enquired about him after she realised  that
        accused No.1 had vanished before she reached Kothamangalam.
        This  long  silence  of  PW3  with  respect  to her alleged
        partner, accused No.1, is also  relevant  in  this  regard.
        The  version  of the victim, in both the cases reveals that
        she had never enquired about accused No.1 with any one,  at
        all.   This conduct of hers is inconsistent with her theory
        that she left the school campus  out  of  love  towards  or
        under the  threat  of  the  first  accused.   The theory of
        simultaneous threat as also love  both  acting  as  reasons
        prompting  PW3 to accompany the first accused is inherently
        uninspiring also.
         41.  Apart from these there is no  connecting  link
        proved between  accused  Nos.1  and 2 and Dharmarajan.  The
        presence of accused No.2 in the bus does  not  in  any  way
        connect accused  No.1  to  the  alleged  conspiracy.    The
        prosecution  has  no  case  of  any  previous  acquaintance
        between accused  No.2  and  PW3.  The evidence of PW66 does
        not speak about any conspiracy.  She  speaks  about  giving
        MO1  album to accused No.1 who undertook to give it to PW3.
        This will reveal only acquaintance among the said three who
        happened to see in the bus regularly and does not give  any
        support to the theory of conspiracy.
         42.    The  trip  sheet  of  the  buses,  Ext.P115,
        produced by PW78, R.T.O.  speaks about timing of the  buses
        in  which PW3 had travelled from Munnar to Kothamangalam on
        16.1.96 and nothing else.  In the absence of production  of
        the  letter  written  by  PW3  as  is  discernible from the
        evidence of DW3 and Ext.X13 in the second case, this travel
        can be as of her own in the nature of the contents  of  the
        letter spoken to by DW3.
         43.  There is also no case for the prosecution that
        the  alleged  conspiracy  among  the three persons had been
        continued by Dharmarajan with other accused  by  presenting
        the  girl  for  rape  and  gang  rape  to  them and also in
        confining PW3 in the house of Accused No.38  and  39.    We
        have  gone through the evidence again and we could not find
        any allegation of meeting of mind of any of  these  persons
        except  the  alleged  phone  call made by Dharmarajan or by
        accused No.4 to Accused No.10.  Nobody has spoken about the
        meeting of  minds  by  these  accused  to  have  a  further
        conspiracy  regarding  the commission of rape or gang rape.
        The second  part  of  the  conspiracy  is  alleged  as  the
        integral part  of  the  initial  conspiracy  itself.    The
        prosecution could not prove the initial conspiracy and thus
        any continuing conspiracy as well.
         44.  It has to be borne in mind that even going  by
        the  prosecution case accused No.1 did not have any role at
        all after 16.1.96.  The prosecution has no evidence, theory
        or even semblance of a suggestion that  the  first  accused
        had  any  role  to  play  after  16.1.96 or had enjoyed any
        benefit from the alleged agreement to commit crimes.    The
        allegations  against the first accused are thus found to be
        inherently uninspiring.      About   the   involvement   of
        Dharmarajan  in the conspiracy prior to his alleged meeting
        PW3 in the Bus stand at  Kottayam,  there  is  no  evidence
        worth the  name  except his presence there on 16.1.96.  The
        case of the prosecution that  Dharmarajan  was  waiting  at
        Metro   lodge  from  2.1.96  anticipating  that  the  other
        conspirators would bring PW3 to Kottayam bus stand on  some
        day  thereafter  is,  to  say  the  least,  improbable  and
        uninspiring.  Thus these facts are sufficient  to  conclude
        that  the  prosecution  has failed to prove the conspiracy,
        including its commencement from the alleged  kidnapping  of
        PW3.  The prosecution has not thus succeeded in proving the
        case  of  conspiracy  alleged  against  any  of the accused
        beyond reasonable doubt.  Thus the conviction under Section
        120-B has to be reversed.
         45.  Next we will consider the case of  kidnapping.
        It  is  the  case of the prosecution that the first accused
        had kidnapped PW3  so  that  he  could  hand  her  over  to
        Dharmarajan and  other  accused.    While  considering  the
        conspiracy alleged by the  prosecution  we  referred  to  a
        letter  written  by PW3 as spoken to by DW3 and as referred
        to in Ext.X13 in the second case.  We have also come to the
        finding that that letter would reveal the  reason  for  her
        disappearance.   The contents is spoken to by DW3 that, she
        was going on her own from the family.  Though the letter is
        known to the police,  they  did  not  reveal  it.    If  it
        contained  the  version  that  she  had  gone  on  her own,
        allegation of kidnapping of PW3 from lawful custody of  her
        parents cannot be sustained.  The letter thus also takes us
        a long way to disprove the case of kidnapping.  That letter
        cannot any more be disputed by the prosecution in the light
        of Ext.X13  in  the  second  case.   Non production of this
        letter, the existence and contents of which are  proved  by
        DW3  and  Ext.X13,  creates  a  doubt against the theory of
        kidnapping alleged by the prosecution.  From  S.Varadarajan
        v.  State of Madras (AIR 1965 SC 942) it is clear that if a
        minor  girl  leaves her parents on her own, the persons who
        subsequently come across the minor cannot  be  held  to  be
        guilty  of "taking or enticing" the minor out of the lawful
        keeping of its guardian.  Non production of the letter  and
        suppression   of  the  same  must  in  these  circumstances
        certainly entitle the accused to the benefit  of  doubt  on
        this crucial  aspect.   So the conviction under Section 363
        IPC shall also have to be reversed, giving the  benefit  of
        doubt to the accused.
         46.   We  will  now  consider  the  other  offences
        related to kidnapping viz., those punishable under Sections
        365 and 368 I.P.C.  No kidnapping is proved  satisfactorily
        and beyond  doubt  as found above.  So there arises no case
        of confining a kidnapped minor nor concealing such a person
        revealing offences punishable under Sections  365  and  368
        I.P.C.   Consequently  the conviction under Section 365 and
        368 shall also have to be  vacated.    Under  Section  368,
        accused  No.38  and  39  alone had been convicted and their
        conviction is on those counts alone.
         47.  Next we will have to  deal  with  the  alleged
        rape.  The  evidence regarding rape is spoken to by PW3.  A
        reading of the evidence of PW3  will  categorically  reveal
        that   there   had   been   several   occasions  of  sexual
        intercourses with her by several of the accused during  the
        40  days  period  from  16.1.1996  to  25.2.1996, except by
        accused Nos.  1, 2, 17, 38 and 39.  The  Public  Prosecutor
        is justified in submitting that appreciation of evidence of
        a  victim  in  a  rape case shall be on a different footing
        from the evidence of any other  injured  witness  in  other
        criminal cases.  The evidence of the rape victim shall have
        to  be given due weight as held by the Supreme Court in the
        decision in  State  of  Maharashtra  v.      Chandraprakash
        Kewalchand Jain (1990 SCC (Cri) 210) and Rafiq v.  State of
        U.P (1980 SCC (Cri) 947).  In the former it was held that:


          "The prosecutrix of a sex offence cannot be
                put on  par  with  an accomplice.  She is in fact a
                victim of the crime.  The Evidence Act nowhere says
                that her evidence cannot be accepted unless  it  is
                corroborated in   material  particulars.    She  is
                undoubtedly a competent witness under  Section  118
                and her evidence must receive the same weight as is
                attached   to  an  injured  in  cases  of  physical
                violence.  The same degree of care and caution must
                attach in the evaluation of her evidence as in  the
                case  of  an  injured complainant or witness and no
                more.  What is necessary is that the court must  be
                alive  to  and  conscious  of  the  fact that it is
                dealing with  the  evidence  of  a  person  who  is
                interested in the outcome of the charge levelled by
                her.   If  the  court  keeps this in mind and feels
                satisfied that it can act on the  evidence  of  the
                prosecutrix,  there  is  no rule of law or practice
                incorporated  in  the  Evidence  Act   similar   to
                illustration  (b)  to Section 114 which requires it
                to look for corroboration.  If for some reason  the
                court is hesitant to place implicit reliance on the
                testimony  of  the  prosecutrix  it  may  look  for
                evidence which may lend assurance to her  testimony
                short  of  corroboration required in the case of an
                accomplice.  The nature  of  evidence  required  to
                lend  assurance to the testimony of the prosecutrix
                must  necessarily   depend   on   the   facts   and
                circumstances of  each  case.  But if a prosecutrix
                is an adult and of full understanding the court  is
                entitled  to  base  a  conviction  on  her evidence
                unless the same is  shown  to  be  infirm  and  not
                trustworthy.   If the totality of the circumstances
                appearing on the record of the case  disclose  that
                the  prosecutrix  does  not have a strong motive to
                falsely  involve  the  person  charged,  the  court
                should  ordinarily  have no hesitation in accepting
                her evidence.  We have, therefore, no doubt in  our
                minds that ordinarily the evidence of a prosecutrix
                who  does  not lack understanding must be accepted.
                The degree of proof required  must  not  be  higher
                than is  expected  of  an injured witness.  For the
                above reasons we think that exception  has  rightly
                been  taken to the approach of the High Court as is
                reflected in the following passage:

          "It is only in the rarest of rare cases  if
                        the  court  finds that the testimony of the
                        prosecutrix is so trustworthy, truthful and
                        reliable that other corroboration  may  not
                        be necessary.

         With respect,  the law is not correctly stated.  If
                we may say so, it is just the reverse.   Ordinarily
                the  evidence  of a prosecutrix must carry the same
                weight as is attached to an injured person who is a
                victim  of  violence,  unless  there  are   special
                circumstances  which  call  for greater caution, in
                which case it would be safe to act on her testimony
                if there is independent evidence lending  assurance
                to her accusation."


        In the latter one, it was observed by the Apex Court that:


          "Hardly  a  sensitized  judge  who sees the
                conspectus of circumstances  in  its  totality  and
                rejects the testimony of a rape victim unless there
                are  very  strong  circumstances militating against
                its veracity."
         48.  The Public Prosecutor has also relied  on  the
        recent  decision  of the Supreme Court reported in State of
        Himachal Pradesh v.  Shree Kant Shekari (AIR 2004 SC 4404),
        wherein it was held that:


          "It is  well  settled  that  a  prosecutrix
                complaining  of having been a victim of the offence
                of rape is  not  an  accomplice  after  the  crime.
                There  is  no rule of law that her testimony cannot
                be  acted   without   corroboration   in   material
                particulars.   She stands at a higher pedestal than
                an injured witness.  In the latter case,  there  is
                injury on the physical form, while in the former it
                is physical as well as psychological and emotional.
        But  even  in  that  decision,  the  Apex Court has made it
        explicitly clear that:


         However, if the Court on facts finds  it  difficult
                to  accept  the  version  of the prosecutrix on its
                face value, it may search for evidence,  direct  or
                circumstantial,  which  would lend assurance to her
                testimony.  Assurance, short  of  corroboration  as
                understood  in  the  context of an accomplice would
                suffice."
         49.  In State  of  Maharashtra  v.    Chandrapakash
        Kewalchand Jain (AIR 1990 SC 658) also the Apex Court ruled
        in the same lines that:


          "We  think  it proper, having regard to the
                increase in the number of  sex-violation  cases  in
                the  recent past, particularly cases of molestation
                and rape in custody, to remove the  notion,  if  it
                persists,  that  the  testimony of a woman who is a
                victim  of  sexual  violence  must  ordinarily   be
                corroborated  in material particulars except in the
                `rarest of rare cases'.  To insist on corroboration
                except in the rarest of rare cases is to  equate  a
                woman  who  is a victim of the lust of another with
                an  accomplice  to  a  crime  and  thereby   insult
                womanhood"
        indicating  that,  there  can be rarest of rare cases where
        corroboration shall  be  insisted.    We  do  agree  -  not
        corroboration,    not   even   assurance,   but   certainly
        satisfaction of the judicial conscience must be insisted.
         50.  Reversing conviction by Sessions Court and its
        confirmation in appeal by the High Court, the Apex Court in
        Surjan & anr.  v.  State of M.P.  (AIR 2002  SC  476)  held
        that:


         "In  a  case  where six indicated persons should be
                visited with a minimum sentence of  10  years'  RI,
                the   Court   cannot   afford   to   act   on   the
                uncorroborated testimony of the prosecutrix  unless
                the said  evidence is wholly reliable.  When looked
                at the testimony of  PW1  from  all  the  different
                angles  highlighted  above,  we  are unable to hold
                that her testimony is wholly reliable.  In  such  a
                situation,    materials   for   corroborating   the
                testimony of  PW1  could  not  be  obviated.    But
                unfortunately there is none."
        Therefore  the  legal  position  is as held in Vimal Suresh
        Kamble v.  Chaluverapinakeapal S.P.  & anr.  {(2003) 3  SCC
        175} that:


         "It  is no doubt true that in law the conviction of
                an accused on the basis of  the  testimony  of  the
                prosecutrix  alone is permissible, but that is in a
                case where the evidence of the prosecutrix inspires
                confidence and appears to be natural and truthful.
        Because as held by the Apex Court in Sudhansu Sekhar  Sahoo
        v.  State of Orissa (2003 Crl.LJ 4920),


         "It  is  also  reasonable  to  assume that no woman
                would falsely implicate a person in sexual  offence
                as the honour and prestige of that woman also would
                be at   stake.     However,  the  evidence  of  the
                prosecution shall be cogent and convincing  and  if
                there  is  any  supporting  material  likely  to be
                available, then the rule of prudence requires  that
                evidence  of  the  victim  may be supported by such
                corroborative material."
         51.  In yet another  recent  decision  reported  in
        State of  Punjab  v.   Ramdev Singh (AIR 2004 SC 1290), the
        Supreme Court again reiterated that:


          "It is  well  settled  that  a  prosecutrix
                complaining  of having been a victim of the offence
                of rape is  not  an  accomplice  after  the  crime.
                There  is  no rule of law that her testimony cannot
                be  acted   without   corroboration   in   material
                particulars.   She stands at a higher pedestal than
                an injured witness.  In the latter case,  there  is
                injury on the physical form, while in the former it
                is  both  physical  as  well  as  psychological and
                emotional.  However, if the Court of facts finds it
                difficult to accept the version of the  prosecutrix
                on  its  face  value,  it  may search for evidence,
                direct  or   circumstantial,   which   would   lend
                assurance to  her  testimony.   Assurance, short of
                corroboration as understood in the  context  of  an
                accomplice would do."
         52.   At the same time the defence has a contention
        that appreciation of evidence of PW3 in this case,  who  is
        said  to have withstood the alleged atrocities committed on
        her for a long period of 40 days shall have to be viewed in
        a different angle rather than in an ordinary rape case or a
        rape for one or two days.  As held in  Rafiq's  case  cited
        supra:


         " We do  not  agree.    For one thing, Pratap
                Misra case laid down no inflexible axiom of law  on
                either point.    The  facts and circumstances often
                vary from case to case, the crime situation and the
                myriad  psychic  factors,  social  conditions   and
                people's life-style may fluctuate, and so, rules of
                prudence  relevant  in  one  fact-situation  may be
                inept in another.  We cannot  accept  the  argument
                that  regardless of the specific circumstances of a
                crime  and  criminal  milieu,   some   strands   of
                probative  reasoning  which  appealed to a Bench in
                one reported decision must mechanically be extended
                to other cases.  Corroboration as a  condition  for
                judicial reliance on the testimony of a prosecutrix
                is  not a matter of law, but a guidance of prudence
                under given circumstances.  Indeed, from  place  to
                place, from age to age, from varying life-style and
                behavioural  complexes, inferences from a given set
                of facts, oral and circumstantial, may have  to  be
                drawn   not  with  dead  uniformity  but  realistic
                diversity lest rigidity in the shape of rule of law
                in this area be introduced through a  new  type  of
                precedential tyranny.    The same observation holds
                good regarding the presence or absence of  injuries
                on the person of the aggressor or the agressed."
         53.   Even  in  C.K.Jain (supra) it was pointed out
        that:


         "We think it proper, having regard to the  increase
                in  the number of sex violation cases in the recent
                past, particularly cases of molestation and rape in
                custody, to remove the notion, if it persists, that
                the testimony of a woman who is a victim of  sexual
                violence   must   ordinarily   be  corroborated  in
                material particulars except in the rarest  of  rare
                material  particulars  except in the rarest of rare
                cases."
        Thus there  can  always  be  rarest  of  rare  cases  where
        corroboration is  required.    Based  on  the facts in this
        case, is it one of that sort?  If  the  answer  is  in  the
        affirmative,  the evidence of the victim in this case shall
        be viewed in the same angle as an injured  witness  who  is
        always interested  in  the  outcome  of  the case.  In such
        circumstances the court shall always have to seek materials
        to offer satisfaction to the judicial  conscience,  if  not
        corroboration or  even  assurance.    The materials must be
        such as to induce satisfaction in the judicial  mind.    Or
        else  the evidence should have been one which shall inspire
        implicit confidence in the mind of the  court.    In  other
        words, as held in Vimal Suresh Kamble's case (supra) if,


         "The  evidence  of  the prosecutrix in this case is
                not of such quality, and there is no other evidence
                on record which may even lend some assurance, short
                of corroboration that  she  is  making  a  truthful
                statement",
        it is of no use to fasten conviction.
         54.   We are unable to persuade ourselves to accept
        the argument that in all cases the rigid rule of acceptance
        of the evidence of prosecution is to apply.  Precedents can
        only  guide  and  assist  the  courts  in  the  matter   of
        appreciation  of  evidence  -  whether  of a rape victim or
        other victims or witnesses.  It is the prudence  and  sound
        judgment of the court, its assessment of circumstances, its
        knowledge   of   men   and   matters,   its  assessment  of
        probabilities, its knowledge of the common course of events
        and behaviour and conduct of individuals  and  its  trained
        intuitions which should help it to resolve subtle questions
        of appreciation  of  evidence.    An  emotional approach or
        insistence that the evidence of all rape victims have to be
        accepted is not warranted or permitted  by  law  and  would
        result in negation of justice.
         55.   The  Investigating Officers have attempted to
        secure evidence to corroborate the evidence  of  PW3  about
        her  movements  and  residence  at  various  places between
        16.1.96 and 26.2.96.  Evidence of PW3 on those aspects have
        been substantially corroborated.  But  the  million  dollar
        question  in  this  case  is  not whether PW3 had stayed at
        these places and whether the indictees had intercourse with
        her.   The  question  is  whether  such  intercourses  were
        without her  consent  to  be  called  rapes.  It is on that
        subtle, finer and sublime aspect that the evidence deserves
        to be scrutinised with care.  Is PW3 after returning to the
        fold of her parents on 26.2.96 attempting to wish away  all
        consensual  sexual intercourses between 16.1.96 and 26.2.96
        by calling them rapes without her consent?  Is  she  trying
        to  paint  herself  white and attempting to place the blame
        for her unfortunate predicament on  the  shoulders  of  all
        with  whom  she had sexual intercourse by making convenient
        omnibus assertions that they were all  rapes?    We  cannot
        assume  that  the  consent  is no consent because PW3 was a
        young girl who had just crossed 16 years.   Under  law  she
        had reached  that  age of consent.  Why did she consent and
        was it prudent on her part to consent are not certainly the
        questions before Court.  Did she consent - whether for  the
        proper reasons  or  the  improper  ones?    Is such consent
        vitiated on any grounds recognised by law?  These  are  the
        questions to be considered.  Her young age by itself cannot
        be  legally  accepted  as  a  sufficient  reason to vitiate
        consent, because she was admittedly above  the  age  of  16
        years at  the  relevant  time.   These questions have to be
        considered cognisant of the law relating to burden of proof
        and benefit of doubt wherever applicable.  The yardstick of
        the ordinarily prudent person  in  the  polity  has  to  be
        adopted by the court.
         56.   When  we read the evidence of PW3, we have to
        be cognisant of her psyche - her mental make up.  Her  past
        conduct and  behaviour  have  to be borne in mind.  She was
        only a  student  of  9th  standard.    She  had  squandered
        Rs.450/-  entrusted  to  her  by  her  father for remitting
        hostel fees, whether it was given to Arun as stated by  the
        appellants  or  to  the  first  accused  as  stated  by the
        Prosecutor.  That piece of  conduct  is  admitted  by  her.
        Though there  is no such statement earlier in the C.D.  she
        now explains it away saying that she had paid the amount to
        the first accused.  A school girl will always be obliged to
        account when hostel fee is not remitted.    She  must  have
        known that  she  will  have to account.  Her conduct showed
        that she was still unmindful of it.  She  was  prepared  to
        take that  risk.    Added  to  this is, as suggested by the
        counsel for the appellants, that she  was  even  courageous
        enough  to  approach a jeweller for pledging an ornament of
        hers which her parents  had  given  her  to  wear,  meaning
        thereby  that  she  had  that much capability or courage of
        even withstanding a question by her parents as to the  loss
        of such  ornament.    She admitted during evidence that she
        had done so.  So this gives indications about  the  conduct
        and mental  make up of PW3.  She is shown to be one who was
        prepared to take such risks.  She  was  mentally  ready  to
        take that risk  for  raising money.  She needed money.  She
        was prepared to raise it.  She had needs which her  parents
        did not  know.    She  was  prepared  mentally to advance a
        different false version to justify herself.   The  jeweller
        was a kind  soul.   He became suspicious.  She gave a false
        identity to him.  He verified her books.  He  realised  her
        ploy.  He  informed PW1.  She is thus shown to be a girl of
        deviant character.  She was not a normal innocent  girl  of
        that age.   She was a different person.  The peculiarity in
        her personality must realistically be borne in mind.    The
        evidence  of  a  person  of  her  age  with  such a conduct
        certainly has to be viewed seriously and with caution.    A
        court cannot  meekly  swallow  her  version.    It requires
        serious critical assessment.
         57.  It is  also  brought  to  our  notice  that  a
        question  was  asked during cross examination as to whether
        she  was  interrogated  by  the  Investigating  Officer  in
        "Abhaya case".    Abhaya  case  is a notorious one known to
        every one in Kerala.  Her  answer  was  that  she  did  not
        remember whether  she was questioned in that case.  This is
        an evading answer.  No one could have forgotten that if she
        were really questioned in such a  case.    This  shows  her
        attitude.   Her capability not to reveal to others what she
        does not feel  inclined  to.    The  aspect  by  itself  is
        irrelevant.   But  the attitude is certainly relevant while
        appreciating the evidence.
         58.   Referring  to  her  evidence  in  court,  the
        non-identification of accused No.23, a Professor, by her is
        also highlighted by the appellants.  Even according to her,
        accused  No.8  and  23  raped her while in Samudra Hotel in
        Kanyakumari on  2.2.1996.    Next  day  she  was  taken  to
        Thiruvananthapuram in  a  car.    This  Professor,  accused
        No.23, was also in  the  car  while  on  the  journey  from
        Kanyakumari to Thiruvananthapuram.  Thus he was with her on
        2.2.96 and  3.2.96 for quite a long time.  In spite of that
        she did not identify him in court, though she says that she
        had noticed him, specifically, as  a  man  aged  50  to  55
        years,   among  the  persons  who  came  to  her  while  in
        Kanyakumari.  PW97, the  final  Investigating  Officer  has
        admitted  that,  accused  No.23  was the Professor while he
        studied in College.  It  is  thus  suggested  that  she  is
        prepared to implicate any one or avoid another, even at the
        instance of  the of the Investigating Officer.  Though this
        contention as  such  has  no  bearing  on  this  case,  her
        inability  to  identify  the professor who was with her for
        two days including in a journey and whom she had noticed as
        the aged among the lot, is something to be  kept  in  mind,
        while appreciating  her  evidence.    We repeat careful and
        cautious assessment, not naive acceptance is the imperative
        necessity.
         59.  It was suggested by the defence  inviting  our
        attention  to  the  evidence  of  PW3 that she was speaking
        untrue version  about  her  leaving  Mount  Carmel  School,
        Kottayam  while  in standard VIII to join the Little Flower
        Girls High  School  at  Nallathanni.    According  to   the
        appellants  it was because of her expulsion from the former
        school due to bad conduct that she could not carry  on  her
        studies for  an  year there.  That was why she had gone for
        tuition under PW55.  But her version is that she  had  been
        in   the   habit  of  bed  wetting  and  therefore  had  to
        discontinue the studies in the Mount Carmel School  as  she
        lost  the  help of her elder sister, who left the school on
        completion of her study, for cleaning the urine soaked  bed
        linen.   But  her  evidence further shows that she attained
        puberty at  the  age  of  10  1/2  years,  obviously  while
        studying in 5th or 6th standard.  It is pointed out that it
        is too unbelievable that such a girl studying in Standard 8
        then  could  not  clean  by  herself,  her urine soaked bed
        wetted night linen.  That means she is always  seeking  for
        some or  other excuse for her acts, one way or other.  Even
        though we do not attribute any importance by itself to  the
        change  of  school, the attitude of PW3 is revealed by this
        also.
         60.  It is also revealed from the evidence of  PW1,
        the  father  of  PW3,  that even though PW3 was in a hostel
        managed by nuns, he was keeping an unusually  vigilant  eye
        on her.    There is evidence in this case that the nuns had
        contacted him over  phone  as  to  whether  PW3  should  be
        granted  permission  to  go  out  of  the hostel on 16.1.96
        itself in order to give her clothes to the launderer.  This
        is so unusual and it speaks about the deep apprehension  of
        her father about her conduct and movements.  Such telephone
        calls  from the hostel became necessary only as insisted by
        him, as he was suspicious and unsure of his daughter.   PW1
        apprehended  that  she  may  run  away,  it is compellingly
        indicated.  Even when  she  was  found  missing  his  first
        statement  in  Ext.P1  is that he did not know why "she had
        run away" (.................    .......).    It   is   also
        discernible  from  the evidence of DW3 and from Ext.X13 and
        the letter spoken to by DW3 in the second  case,  that  she
        had written a letter to DW3, Kochumon, the driver of a bus.
        Kochumon  had also deposed that PW3 had a conduct of easily
        getting acquaintance with all.   Her  inclination  to  have
        such  friendly  relationship  with a stranger like Kochumon
        must also be taken note of while appreciating her evidence.
         61.  When such a girl had gone out of  the  custody
        of  her parents for about 40 days and had been with several
        other  persons,  it  cannot  be  said  that  her   evidence
        regarding  her  unwillingness for sexual intercourse should
        be believed  as  such  without  insisting  on  satisfactory
        materials for assurance, as in the case of a rape victim of
        a  solitary instance or being ravished by one or a group of
        persons for one or two days.
         62.  Added to these is the  fact  that  during  the
        long  period  of  40  days she had been taken from place to
        place in public conveyances and she had been kept in lodges
        where others had also sought accommodation.  She  was  also
        taken  to  hospitals  twice, as admitted by her during this
        period.  But there was no attempt on  her  part  to  escape
        from   the  clutches  of  any  of  the  accused,  including
        Dharmarajan.   While  appreciating  the  evidence  on  this
        aspect  one  cannot  lose sight of the state of mind of her
        detractors - the indictees.  If they had even  a  suspicion
        that  she was unwilling, would they have even from the very
        next day i.e.  17.1.96 withstood the  risk  of  taking  her
        along  public  roads to public places in public conveyances
        and through places which she  was  familiar  with?    While
        appreciating  her  evidence  about her consent or otherwise
        such conduct of her detractors, which is inconsistent  with
        the  assertion  of  absence  of  consent  by  PW3 cannot be
        ignored or lightly wished away.
         63.  After she had allegedly realised on the  night
        of  16.1.1996,  on  the  first  day,  in the Metro lodge at
        Kottayam that the mission of Dharmarajan was  not  to  save
        her  or  to  entrust her to her uncle at Mundakayam, but to
        ruin her, when she was taken on the morning of 17.1.96 from
        the lodge and reached  Kottayam  bus  stand;  there  should
        normally have  been  an attempt for escape.  There was none
        else at that time.  According to her even on  the  previous
        night,  she came to Kottayam bus stand, on her own decision
        to go to her aunt residing in Kottayam.  So she could  have
        easily   attempted   to   escape  as  it  was  a  place  of
        acquaintance for her.  She knows the  house  of  her  aunt.
        She  had  been  studying,  admittedly, in Kottayam earlier.
        Instead, she was, in a public conveyance,  as  admitted  in
        her evidence,  accompanying  Dharmarajan to Ernakulam.  Was
        that transportation, through territory not alien to her, of
        a captive minor who could at any  moment  have  foiled  the
        designs  of  the  only  detractor  at that time by reacting
        against him or was it a willing journey of a misguided girl
        above 16?  The question requires  and  demands  closer  and
        anxious  search  The  response  has  to be rational and not
        emotional.
         64.  Ext.P57(a) register discloses that room  taken
        by  Dharmarajan in Metro lodge, Kottayam was vacated in the
        morning of 17.1.96 itself and he took a room in Anand lodge
        at Ernakulam only at 6.45 P.M.  on 17.1.96 as  is  revealed
        by Ext.P58  and  58(a).  She was thus for long hours in day
        light  in  the  open  space  in  Ernakulam,  a  busy  city.
        Necessarily  there  were  occasions  for her to escape from
        Dharmarajan who had, according to her, really  spoiled  her
        on the previous night, at least by attracting the attention
        of the  public.    As admitted by PW3, there was none other
        than him at that time with her.  At least Dharmarajan  must
        have been  wary  of  that  possibility.    An assessment on
        probabilities has to take into account all the realities of
        the situation - including the apprehension which must  have
        worked  in  the mind of Dharmarajan, the alleged tormentor,
        who took the risk of taking PW3 the alleged  captive  minor
        in that manner.
         65.   She  also  did not attempt to escape when she
        had been kept in a room at Hotel Geeth in Trivandrum  while
        on  their  way from Kanyakumari to Kuravilangad, by the 4th
        accused.  Even going by the evidence of PW3, after an  over
        night  stay  in  Hotel  Geeth, in the next morning, accused
        No.4 had left the room keeping her alone in  the  room  and
        locking it  from  outside.    He  came late in the evening.
        Necessarily  a  person  who  was  not  consenting  to   the
        allegedly  atrocious  acts  of  the  4th accused or any one
        else, could not have remained alone there without  thinking
        of  the  option  to escape after two or three hours or even
        half a day, if she had been suffering atrocities  from  the
        accused persons   as   deposed   by   her.     These  human
        possibilities and probabilities cannot be ignored.
         66.  It is also revealed that PW12 Jacob  Sait  had
        approached her  in  Hotel Geeth.  But as admitted by PW3 he
        did not commit any mischief on her.    He  was  sympathetic
        towards her.    She was alone in the room at that time, and
        on allegedly seeing her  plight,  PW12  withdrew  from  the
        room.  It  was  on  4.2.1996.    According  to her, she was
        suffering a lot for about three weeks by that time.    Even
        to  PW12,  a  person  of such a nature found by her for the
        first time after 16.1.1996, she did not  admittedly  reveal
        her  identity  and alleged plight, which she had admittedly
        spoken to other rapists; so that she could manage to escape
        from the 4th or other accused.
         67.  It  is  also  pointed  out  that  from  Kumali
        Dharmarajan  had  taken  PW3 to Palghat and stayed in Hylex
        lodge at Palghat.  After an overnight stay, they went  over
        to Vanimmel in Kozhikode, where accused No.16 was residing.
        He  was  an  employee  in  the  Panchayat  and  a friend of
        Dharmarajan.   Even  going  by   the   evidence   of   PW3,
        Dharmarajan  had gone out leaving PW3 in the house and came
        back only on the next day.  She had been alone there for  a
        long  time,  when two teachers, who were the inmates of the
        house and the 16th accused had gone for their job.  A close
        neighbour of the house of accused No.16 has  been  examined
        as DW5.    He  was  also  a  witness  to  the scene mahazar
        prepared by the police after inspecting the house  of  16th
        accused.   He  had  deposed  that  he  had  seen PW3 in the
        courtyard and veranda of the house and  the  owner  of  the
        house  Nabeesa  told  him  about  the  girl in the house of
        accused No.16.  Thus in spite of the fact that she  had  an
        occasion  to  be  alone  in that house she did not make any
        attempt to escape.  She had been in that  house  for  three
        days from  22.1.96 to 25.1.96.  If the version given by PW3
        is correct, by that time, she had suffered almost every day
        from  16.1.96  onwards  continuous  rapes  by  Dharmarajan,
        Accused  No.5,  one Devassiachen, an absconding accused and
        Accused Nos.4, 7 and 16 at different places.   Any  one  in
        such  situation  will think of an attempt to escape, if not
        an escapade.
         68.  It is also pointed out that she had been taken
        for journey for a long distance throughout the breadth  and
        length of the State and even beyond the State, during these
        40 days.    She  had  travelled  between Kanyakumari in the
        south and Vanimel in Calicut in the north, as spoken to  by
        her.   It  is  also  stated  that  she had travelled in the
        breadth of the State right from Ernakulam to Kumali, a hill
        station, and even crossed the border to Kambam and Theni in
        Tamil Nadu.  Mundakkayam and Kottayama, as admitted by PW3,
        are familiar places for her.  In Kottayam she  had  studied
        for few  years.    More  over,  when  she  was  placed in a
        helpless situation at Kothamangalam due to vanishing of the
        first accused on 16.1.1996, she had deliberately decided to
        go to Kottayam even during night to reach her  aunt  there.
        She  had come to Kottayam on more than two occasions during
        these 40 days in public conveyance and even to  bus  stand.
        But she  had  not  attempted  to  escape.    It  is also in
        evidence  that  she   had   passed   through   Mundakkayam.
        Mundakkayam  is also a place where she decided to go on the
        night of 16.1.1996 to reach her uncle.    She  had  been  a
        commuter  from  Mundakkayam  to  Kottayam while studying in
        Kottayam, as spoken to by her in the court below.  She  had
        passed  through  Mundakkayam  in a public conveyance during
        the said 40 days.  In spite of that she had  not  tried  to
        escape  so  that she can reach the house of her uncle, whom
        she had telephoned earlier.
         69.  As admitted by PW3, while in  the  custody  of
        the  accused,  she had made a phone call to her uncle PW57.
        She alone knew that telephone number.  That telephone  call
        is of vital significance.  Why did she make that call?  Did
        she make it on her own?  Certainly her detractors could not
        have asked  her  to  make  the  call.  That would not serve
        their purpose at all.  She was, it is evident, free to make
        a telephone  call  to  her  relatives.    If  she  were  in
        captivity  her  detractors  would not have permitted her to
        make a call.  What did she tell  PW57  when  she  made  the
        call?   If  she  had  told  PW57  (or  if  the conversation
        conveyed to PW57) that she was in captivity  the  reactions
        of   PW57   and  PW1  (to  whom  PW57  admittedly  conveyed
        information of that conversation) must have been different.
        In Ext.P1 the allegation of PW1 was that the girl  had  run
        away.   If the evidence of PW3 and PW57 were true, here was
        information received by PW57 and PW1 that she was  captive.
        The  first response must have been to run to the police and
        inform them that the girl had not run away; but  was  taken
        captive detained  illegally.   What followed the telephonic
        conversation was not that.  The marked portions of the C.D.
        statement of PW1 indicates that PW57 told PW1 that PW57 had
        asked PW3 "to return".  Not only PW57 but his  daughter  in
        law had  also  spoken  to her.  Was PW3 calling PW57 on her
        own free will?  Did PW57 then feel the need to  advise  her
        to return?    Why  did not PW57 or PW1 choose to inform the
        police after that call that it was not a case of  the  girl
        running  away  as  perceived at the time of lodging Ext.P1,
        but one of kidnapping of PW3 by some miscreants?   We  must
        look for answers to these disturbing questions also.
         70.  It is also her version that she had been taken
        to two  doctors.    First  in Periyar Hospital in Kumali on
        21.2.96 and then in Anpu Hospital at Elappara  on  25.2.96.
        By  that time, she allegedly had pain in her private parts.
        On account of  painful  compelled  intercourses,  puss  was
        allegedly   coming  from  vagina  and  she  was  too  weak,
        according to her.  She had been taken by the 2nd  and  17th
        accused to  PW27,  the doctor at Periyar hospital.  Ext.P24
        is the O.P.  card in  that  hospital.    The  only  ailment
        spoken  to  by  her  is  sore throat, as seen from Ext.P24.
        Whatever that be, she had been  in  the  safe  hands  of  a
        doctor and  in  a  secure  place like a hospital.  She had,
        according to her, as  spoken  to  in  court,  very  painful
        ailments at  that  time  including  in  her  Vagina.    But
        according to PW27, the doctor, "she appeared normal in gait
        and appearances".  She told him that she went for  a  visit
        in  Thekkady,  a  place of tourist attraction and was going
        back to Ponkunnam.  Ponkunnam is not  her  place,  but  the
        place of  one  of the accused.  Even if it had been said so
        by any one else, nothing  prevented  her  to  disclose  her
        plight to  the  doctor while in that hospital.  This cannot
        be the words and attitude of a girl subjected to  rape  for
        several days  together.  She did not even disclose her true
        name to the  Doctor.    Ext.P24  O.P.    card  discloses  a
        different name.  If she was in real difficult situation she
        could  at  least  try  at  that  moment  to escape from the
        clutches of the accused  and  Dharmarajan  and  can  safely
        reach her  parents  or  her  uncle.  A person suffering the
        trauma described by her for a month will certainly try  for
        that;  because nobody can snatch her away from the hospital
        and from the hands of a doctor.  Her conduct that  she  did
        not do so even in that situation certainly speaks volumes.
         71.   It  is  also  in  her evidence that the third
        accused Jamal took her to his relatives and kept  her  with
        his relatives  for  an  over night stay on 25.2.96.  During
        the night  she  developed  stomach  pain.    She  had   not
        admittedly  revealed  her identity or plight to the inmates
        of that house, who were only ladies.  They had taken her to
        Anpu hospital for treatment by PW28, the doctor there.  She
        did not reveal her correct name to the doctor  there  also.
        In  Ext.P25  prescription  card  her  name  is  written  as
        `Anjali'.  According to her she had constipation  and  back
        pain.  She  was very weak.  It is in evidence of PW.28, the
        doctor and  PW29,  the  nurse  there,  that  she  had  been
        administered enema.  For this the nurse had to undress her.
        Necessarily  if  any  discolouration  or  inflammation  was
        there, it would have been noticed by the nurse.  The doctor
        had deposed that she was not terrified.  PWs.28 and 29 have
        deposed that after  administration  of  enema,  she  became
        normal and  was  relieved  of her debilities.  She could at
        that time reveal her identity to PW28,  the  doctor  or  to
        PW29, the nurse.   She did not do so.  So unusual a conduct
        of a person, if she really did not like the company of  the
        accused.
         72.   Visits to the doctors assume significance and
        relevance.  Even for a comparatively minor ailment of  sore
        throat for  a  day  she  was  taken to a doctor.  Does that
        indicate  cruel  conduct  of  the  captors  or  sympathetic
        conduct of  friendly individuals?  If her version were true
        she was going on telling the persons brought by her captors
        for prostitution that she was unwilling.   She  fully  knew
        that such persons would tell her detractors of her conduct.
        The  evidence  is  that  her  detractors  knew that she was
        telling so to such persons.  She  was  allegedly  taken  to
        task for  such  behaviour.    If  she would tell so to such
        persons, knowing the risk involved, why did  she  not  tell
        the independent  doctors?    If  her detractors knew or had
        reason to think that she may divulge  inconvenient  details
        even  to persons brought by them, would they have taken the
        risk of taking her to respectable doctors for such a  minor
        ailment like  sore  throat?  It doesn't appear to be normal
        conduct of ordinary individuals to do so.  These disturbing
        possibilities have also to  be  taken  into  account  while
        considering the acceptability of the evidence of PW3.
         73.   It  is also to be noted at this juncture that
        whenever a rapist came to her, she had  revealed  that  she
        had heavy pain and she was cheated, she was the daughter of
        Munnar  Postmaster  and  she  had also revealed her correct
        name.  It is unbelievable that such a person did not reveal
        her identity to PWs.  27, 28 and 29, in whose hands she was
        safe, She could have revealed her identity or at least  her
        alleged  ailments  on  those two occasions and attempted to
        escape from the jaws of the rapists.
         74.   These  are  sufficient  indications  in   the
        conduct  on  the  part  of  PW3 that her evidence as a rape
        victim cannot be treated as in the case of any  other  rape
        victim in  the  decided  cases cited before us.  As held in
        Rafiq (1980 SCC (Crl) 947) extracted supra, the  facts  and
        circumstances  often  vary  from  case  to  case, the crime
        situation and the myriad psychic factors and  so  on.    So
        rules  of  prudence  relevant  in one fact situation may be
        inept in another.  To quote the words  of  Justice  Krishna
        Iyer once again,


         "We  cannot  accept the argument that regardless of
                the specific circumstances of a crime and  criminal
                milieu,  some standard of probative reasoning which
                appealed to a Bench in one reported  decision  must
                mechanically be extended to other cases."

         75.   So  taking  all  the  aforesaid circumstances
        together a person like PW3, who deposed that more  than  30
        persons  were  having  intercourse  with  her  at different
        places like Kumali, Theni, Kambam, Palaghat  and  Vanimmel,
        it  cannot be believed from her evidence alone that she was
        not a consenting partner.  As a guidance of prudence  under
        the  given  circumstances, at least convincing assurance if
        not corroboration has to be searched for judicial  reliance
        on the  testimony of the prosecutrix in this case.  In this
        case necessarily apart from  assurance,  corroboration  may
        really  be  required before a conviction is entered into in
        respect of  a  serious  offence  under  Section  376(1)  or
        376(2)(g) believing  her  testimony.    The evidence of PW3
        does not appear to be  cogent  and  convincing  to  inspire
        confidence  for  the  aforesaid reasons, because as held in
        Vimal Suresh (2003 (3) SCC 175):


         "the evidence of the prosecutrix in  this  case  is
                not of such quality"
        to   be  acted  upon  without  corroboration  or  at  least
        assurance that she is making a truthful statement.
         76.  Whether PW3 was a  consenting/willing  partner
        for the  intercourse  is  the  moot  question.   As already
        mentioned, this is not an occasion of a sudden and solitary
        instance of rape, nor a situation of a  forcible  abduction
        and consequent rape for a day or two.  According to her she
        had  been raped continuously for nearly 40 days except when
        she was on  her  menstrual  periods  once,  by  several  at
        different  places  in  the State and outside, in hotels and
        rest houses including in places of tourist attraction  like
        Kanyakumari and  Kumily.    Absence  of consent on all such
        occasions, in spite of several  instances  when  she  could
        have  escaped  as  mentioned above, cannot be gathered only
        from  her  evidence  or  from  what  she  says  in   court.
        Assurance/corroboration  not ocular, but from circumstances
        and broad probabilities, must be searched for.  It  has  to
        be  examined in the light of the peculiar fact situation of
        this case.
         77.  As held in Rao Harnarain Singh v.  State  (AIR
        1958   Punjab   123);  relied  on  by  the  Special  Public
        Prosecutor:


          "A woman is said to consent, only when  she
                freely  agrees to submit herself, while in free and
                unconstrained possession of her physical and  moral
                power to  act  in  a  manner  she  wanted.  Consent
                implies the exercise of  a  free  and  untrammelled
                right to forbid or withhold what is being consented
                to;   it   always  is  a  voluntary  and  conscious
                acceptance of  what  is  proposed  to  be  done  by
                another and concurred in by the former."

        The decision  in  State of Maharashtra v.  Prakash and anr.
        (1992 Crl.LJ 1924) relied on by the Public Prosecutor,  has
        no relevance  to the fact situation in this case.  It was a
        case of rape by a police constable at  whose  instance  the
        victim was called out from the house in the late hours at 2
        a.m.  It is in such peculiar fact frame that the Apex Court
        held that:


         "To  these  poor  rustic  helpless  villagers,  the
                police  constable  represents  absolute  authority.
                They had  no  option but to submit to his will.  In
                all  the  facts  and  circumstances  of  the  case,
                therefore,  we  are of the opinion that the learned
                single  Judge  was  in  error  in  acquitting   the
                accused.  Accordingly, we set aside the judgment of
                the  learned  single  Judge and restore that of the
                learned Sessions Judge."

        The other decision  relied  on  by  the  Public  Prosecutor
        reported in  State  of Himachal Pradesh v.  Mange Ram (2000
        Crl.LJ 4027) is a case where:


         According  to  the  prosecutrix  she  resisted  the
                accused by scratching him with nails",


        and where


         she  also  stated that the accused gagged her mouth
                when she attempted to cry aloud."

        In the 590 pages long deposition  in  the  first  case  and
        another  520  pages long deposition in the second case, PW3
        has no case that she had made any resistance even on any of
        the occasions of  alleged  rapes.    The  alleged  physical
        threat by the rapist was only once on the first occasion of
        rape.   So the said decision also has no application to the
        facts situation here.
         78.  Even in Uday v.  State of Karnataka (AIR  2003
        SC  1639)  relied  on by the Public Prosecutor, the Supreme
        Court has made it clear that:


         In the ultimate analysis, the test laid down by the
                Courts provide at best  guidance  to  the  judicial
                mind  while  considering a question of consent, but
                the Court must, in each case, consider the evidence
                before it and the surrounding circumstances, before
                reaching a conclusion, because each  case  has  its
                own  peculiar facts which may have a bearing on the
                question whether the consent was voluntary  or  was
                given under  a misconception of fact.  It must also
                weigh the evidence keeping in view  the  fact  that
                the  burden is on the prosecution to prove each and
                every ingredient of the offence, absence of consent
                being one of them.

         79.  In this background it is advantageous to refer
        to two decisions of the Apex  Court.    The  first  one  is
        Jinish Lal Shah v.  State of Bihar (2003 (1) SCC 605).  The
        facts there are almost similar to the case on hand.  In the
        case  on  hand in the light of the letter written by PW3 it
        cannot be ruled out that she had not left  her  parents  on
        her own.    She  was  away  from  her house from 16.1.96 to
        25.2.1996.  She went away with clothes and money.   Keeping
        this  in  mind,  the  following  dictum  in  Jinish Lal Sha
        (supra) can be read.


         If we see the  sequence  of  events  starting  from
                30.4.1989  to  10.5.1989  it  is clear that she has
                accompanied the appellant willingly.

          xx xx  xx

         On the contrary, we notice she was  with  him  from
                30th April to 10th May, during which period she had
                travelled  by  train,  tempo  and  stayed  with the
                appellant without there being any evidence  of  her
                having  protested or having made any effort to seek
                help from others or even trying to run away.  Apart
                from that from the record, it is seen that  PW6  in
                the  FIR had stated that "I got information from my
                wife in the house that Geeta went  away  by  taking
                clothes  and  a gold chain and she took Rs.500/- in
                cash in total amounting to Rs.8500/-" This evidence
                though subsequently resiled by PW6  indicates  that
                PW1  had  planned  her  departure from the house in
                advance  and  had  willingly  gone  away  with  the
                appellant  which  also  indicates that there was no
                threat  or  inducement  either  in  regard  to  her
                leaving  the house or in regard to accompanying the
                appellant.  In such situation in the absence of any
                other material to show to the contrary, it will  be
                difficult  to  accept  the  prosecution  case  that
                either there was a forcible  marriage  or  rape  as
                contended  by the prosecution to find the appellant
                guilty under Section 366 or 376  IPC.    Since  the
                courts  below proceeded on the basis that PW1 was a
                girl below the age of 18 on the date when she  left
                the  house  they  have not properly appreciated the
                evidence in  regard  to  her  consent  which  is  a
                mandatory   requirement  before  finding  a  person
                guilty under Section 366 or 376 IPC.


        The other decision is Kuldeep Mahato v.    State  of  Bihar
        ((1998) 6 SCC 420).  It was held:


          "Then  coming  to  the  conviction  of  the
                appellant under Section 376 IPC, although both  the
                courts below have held after accepting the evidence
                of  the  prosecutrix  as  being  truthful  that the
                appellant had forcibly committed the rape,  we  are
                of   the   opinion   that   the   said  finding  is
                unsustainable.   The  prosecutrix  had   sufficient
                opportunity  not only to run away from the house at
                Ramgarh but she could have also taken the  help  of
                the neighbours  from the said village.  The medical
                evidence  of  Dr.Maya  Shankar  Thakur,  PW5   also
                indicates that there were no injuries on the person
                of  the  prosecutrix  including  her private parts.
                Her entire conduct clearly shows  that  she  was  a
                consenting  party  to the sexual intercourse and if
                this be so, the conviction of the  appellant  under
                Section 376  IPC cannot be sustained.  There is one
                more additional factor which we must  mention  that
                it  is not the case of the prosecutrix that she was
                put in physical restraint in the house at  Ramgarh,
                with the result that her movements were restricted.
                This circumstance also goes to negative the case of
                forcible  intercourse  with  the prosecutrix by the
                appellant."

        In the light of the facts discussed above, these  dicta  as
        aforesaid can safely be applied to this case to come to the
        conclusion  that  there  is  no convincing evidence to show
        that she was not an unwilling partner for the sexual
        intercourse.  The claim of the  accused  to  at  least  the
        benefit of doubt has to be considered anxiously.
         80.   It  cannot  be  contended  any  more,  as the
        learned Public Prosecutor did, that the absence of  consent
        is  a matter beyond the burden of proof by the prosecution.
        The definition of rape under Section 375  I.P.C.    reveals
        that  a  person having intercourse with a woman against her
        will and without her consent is guilty of that offence.   A
        man  shall  be  said  to  commit  rape  if  he  had  sexual
        intercourse with a woman  against  her  will,  without  her
        consent or with the consent generated by putting her or any
        person  in  whom  she  is interested in fear of death or of
        hurt.  Admittedly, according to the  prosecution,  PW3  had
        crossed the age  of  consent, viz.,.  16 years.  So want of
        consent is an ingredient of the offence and that ingredient
        has to be  proved  by  the  prosecution  by  some  reliable
        evidence.   Then alone rebuttal by proving positive consent
        arises.  The Supreme Court in Uday (AIR 2003 SC  1639)  has
        made it explicit in unequivocal terms that court:


         "must  also  weigh the evidence keeping in view the
                fact that the burden is on the prosecutrix to prove
                each and every ingredient of the  offence,  absence
                of consent, being one of them".

        This was  again  reiterated  in  Deelip  Singh v.  State of
        Bihar (JT 2004 (9) SC 469) that:



         "the burden is on the  prosecutrix  to  prove  that
                there was absence of consent."

         81.   Consent  is  certainly  "an  act  of  reason,
        accompanied with deliberation, the mind of weighing, as  in
        a balance,  the  good  and  evil on each side".  The Public
        Prosecutor is justified in contending so.  Consent supposes
        three things - a physical power, a mental power and a  free
        and serious  use  of them.  These ensure only the avoidance
        of intimidation, force, undue influence etc.  It  does  not
        mean   that  use  of  these  factors  shall  result  in  an
        intelligent, wise and righteous decision.  In other  words,
        it  should  not  be a mere act of helpless resignation, non
        resistance and passive giving in.   Therefore  as  held  in
        State of  Himachal  Pradesh  v.   Mango Ram (JT 2000 (9) SC
        408):


         "Whether  there  was  consent  or  not  is  to   be
                ascertained only on a careful study of all relevant
                circumstances."

         82.  Section  90  I.P.C.   specifies what cannot be
        regarded as consent under the Code.   Consent  given  under
        fear  of  injury  and  under  misconception  of fact is not
        consent at all.  That is what is enjoined by the first part
        of Section 90.  This is from  the  point  of  view  of  the
        victim.   The  second part of Section 90 envisages that the
        indictee must have knowledge or reason to believe that  the
        consent  was  given by the victim in consequence of fear of
        injury or misconception of fact.  Thus the second part lays
        emphasis on the  knowledge  or  reasonable  belief  of  the
        person who  obtains  the tainted consent.  The requirements
        from the points of view of both  the  parties  have  to  be
        cumulatively satisfied.    It has been held in Deelip Singh
        (JT 2004 (9) SC 469) that:


         "In other words, the court has to see  whether  the
                person  giving  the consent had given it under fear
                of injury or misconception of fact  and  the  court
                should  also be satisfied that the person doing the
                act i.e.  the alleged offender, is conscious of the
                fact or should have reason to think  that  but  for
                the  fear  or  misconception, the consent would not
                have been given.  This is the scheme of Section  90
                which is couched in negative terminology."


        Again as cautioned in that decision itself:


         The  decided  cases  on  the issue reveal different
                approaches   which   may   not    necessarily    be
                dichotomous.   Of  course  the  ultimate conclusion
                depends on the facts of each case."

         83.   We  have   pointed   out   earlier,   several
        situations  including  in hospitals when the victim in this
        case had the sure chances for  escaping  from  the  accused
        who,  according  to  her, put her in great trauma of sexual
        exploitation.   Reversing  the  conviction  under   Section
        376(1) as confirmed by a High Court, the Supreme Court held
        in Kuldeep  K.Mahato  v.   State of Bihar (1998) 6 SCC 420)
        that:


          "Then  coming  to  the  conviction  of  the
                appellant  under Section 376 IPC, although both the
                courts below have held after accepting the evidence
                of the  prosecutrix  as  being  truthful  that  the
                appellant  had  forcibly committed the rape, we are
                of  the  opinion   that   the   said   finding   is
                unsustainable.    The  prosecutrix  had  sufficient
                opportunity not only to run away from the house  at
                Ramgarh  but  she could have also taken the help of
                the neighbours from the said village.  The  medical
                evidence of  Dr.    Maya  Shankar  Thakur, PW5 also
                indicates that there were no injuries on the person
                of the prosecutrix  including  her  private  parts.
                Her  entire  conduct  clearly  shows that she was a
                consenting party to the sexual intercourse  and  if
                this  be  so  the conviction of the appellant under
                Section 376 IPC cannot be sustained."

         84.  More over, is it safe to sentence three dozens
        of persons solely on the uncorroborated  testimony  of  PW3
        which arouses in the mind of the court the dissatisfactions
        referred above?  Even in a rape case involving half a dozen
        persons,  that  too  in  an alleged rape only on a day, the
        Supreme Court in Surjan & ors.  v.  State  of  M.P.    (AIR
        2002  SC 476) observed - we may quote on fear of repetition
        - as follows:


         "In a case where six  indicted  persons  should  be
                visited  with  a  minimum sentence of 10 years' RI,
                the   Court   cannot   afford   to   act   on   the
                uncorroborated  testimony of the prosecutrix unless
                the said evidence is wholly reliable."
        In the line of the reasoning adopted by the  Supreme  Court
        in Sudhansu  Sekhar  Sahoo v.  State of Orissa (AIR 2003 SC
        2136):


         "All these factors cast  a  serious  doubt  on  the
                prosecution case.    Though  there  is  no apparent
                motive for Ms.X to falsely implicate the appellant,
                it may be that Ms.X must have changed her mind when
                she came to know that others must have come to know
                of her conduct.  So there are so many loose ends in
                the prosecution case.  On a  consideration  of  the
                broad  probabilities  of  the  case,  we  feel that
                various factors cast  a  serious  doubt  about  the
                genuineness of the case of Ms.  X that she had been
                forcibly ravished  by the appellant.  The appellant
                is certainly entitled to the benefit of doubt."

         85.  In the aforesaid  circumstances,  we  have  to
        seek  corroboration  or  at  least  some  assurance  to the
        evidence of PW3 on the precise aspect of want  of  consent.
        It  is  not  enough  if  there  is evidence of presence and
        intercourse between PW3 and the indictees.   Assurance  and
        satisfaction  is  needed  on  the precise aspect of want of
        consent.  Keeping in mind the aspects dealt  with  earlier,
        we  are hesitant to place implicit and absolute reliance on
        the testimony  of  the  prosecutrix  alone  on  this  vital
        aspect.  The judicial conscience does not get the assurance
        which it is strenuously searching for on this vital aspect.
        The  Supreme Court in Chandraprakash Kewalchand Jain's case
        (supra) observed that:


         "If for some reason the Court is hesitant to  place
                implicit   reliance   on   the   testimony  of  the
                prosecutrix it may look for evidence which may lend
                assurance to her testimony short  of  corroboration
                required in the case of an accomplice."

        We  did  not  get  any  assurance  on  absence  of consent.
        Necessarily it is to be held that the prosecution failed to
        prove that there was  absence  of  consent  in  this  case.
        Therefore, giving the benefit of doubt the conviction under
        Section 376(1)  I.P.C.    shall have to be reversed in this
        case.
         86.  It is also to be noted that during the sojourn
        of 40 days, there was no physical restraint of P.W.3.   She
        had been  allowed  to  travel  freely.  She does not have a
        case that she was confined in the house of  Accused  No.38.
        As  spoken  to  by D.W.4, she was seen in the courtyard and
        verandah in the house of Accused No.16.  She was  alone  in
        Hotel  Geeth  at  Trivandrum  in  a  room  for a whole day.
        P.W.12 was compassionate towards her while in  that  hotel.
        No body  else  was  there  at  that time.  When there is no
        physical restraint, that will speak much about the  consent
        for sexual intercourse.  This is one more additional factor
        to be considered as held in Kuldeep K.  Mahato v.  State of
        Bihar (1998 (6) SCC 420) as follows:

         "There  is one more additional factor which we must
                mention that it is not the case of the  prosecutrix
                that she was put in physical restraint in the house
                at Ramgarh, with the result that her movements were
                restricted.    This   circumstance   also  goes  to
                negative the case of forcible intercourse with  the
                prosecutrix by the appellant."

         87.   There  were  several  occasions  for P.W.3 to
        reveal her identity to the non-rapists with  whom  she  had
        come across  and sought help.  That she did not do so is an
        indicative factor that she may not have been  unhappy  with
        those who  had  been  keeping  her.   She did not raise any
        objection with the treatment that she  was  receiving  from
        their hands.    If  she  had  any humiliating or unbearable
        treatment, she could have, while in bus  or  bus  stand  on
        several  occasions or in hospitals on two occasions or with
        P.W.12 who showed mercy towards her or while in  the  house
        of  A16,  A38  or  A39  or in the house of the relatives of
        accused No.3, escaped or at least attempted to escape  from
        the clutches of the accused.
         88.   The  medical  opinion  available in this case
        also is of no help to the prosecution to prove  that  there
        was intercourse  using  force.   As admitted by the victim,
        P.W.3, on 21/2/1996, the accused Nos.2 and 17 took  her  to
        the Periyar Hospital at Kumily.  P.W.27 is the Doctor there
        and Ext.P24 is the O.P.  card.  The ailment as disclosed by
        Ext.P24 was  sore  throat  since a day and mild cough.  Her
        real name was not disclosed there.  According to  her,  she
        was  taken  by  them to the Hospital from the rest house at
        Kumily.  She was brought there on 15/2/96.  At  that  time,
        she says in evidence that, there was puss in her vagina and
        that  accused  No.3 and Dharmarajan took several persons to
        her room.  From 15/2/96 to 21/2/96 when she  was  taken  to
        the hospital, according to her, inspite of puss coming from
        her vagina, accused Nos.12, 11, 15, 13, 20, 37, 24, 31, 26,
        25,  19,  18,  Dharmarajan  and Devassiachan had raped her.
        Few of them had raped her even more than once.    According
        to  her,  during  those  days her condition was precarious.
        She had acute pain on the back of her hip.
         89.  To rape a girl with such  ailments,  pain  and
        infected  vagina may be humanly impossible, as contended by
        the appellants, except with roaring cry of the victim.  She
        has no case that she cried aloud on any occasion.  It is in
        this background, the ailment of sore throat  complained  of
        to P.W.27  Doctor  on 21/2/96 has to be viewed.  Even if as
        stated by P.W.3, the ailment has been told by  any  of  the
        accused  who  accompanied  her  or  even  if  any  one  had
        threatened her not to disclose her true name  or  cause  of
        ailments,  nothing  prevented  her  to  disclose  her  full
        details and predicament to P.W.27, a doctor  while  in  his
        hospital.   She was in the protection of a doctor in a safe
        place like hospital wherefrom no one could snatch her away.
        A person like P.W.3 with the ailments as spoken to  by  her
        during  those  days  could  not  be  believed  to  have not
        disclosed such ailments if there had  been  such  ailments.
        P.W.27, the doctor also deposed that she was normal in gait
        and  appearance  and  that  P.W.3 told him, that she was on
        visit to Thekkady a hill  resort  and  was  on  her  return
        journey to  Ponkunnam.  Thus, she had told these details to
        the doctor.  If somebody  else  told  so,  she  could  have
        revealed  the  truth to the doctor, while in that hospital.
        This is indicative of the fact that  there  was  no  forced
        intercourse  by nearly 15 persons as mentioned above during
        that week.  If she suffered any such pain or ailment as  to
        make  intercourse  painful  and  hence  impossible,  it  is
        unlikely that she would not have complained to the doctors.
         90.  Again, the relatives of Accused No.3 took  her
        to Anbu  Hospital,  Elappara on 25/2/96.  It is to be noted
        that from Periyar Hospital she was taken  to  Kambam  where
        according  to her two persons including accused No.35 raped
        her.  Later she was taken to Kumily again.  She was  unable
        to walk,  she  says.   She stayed with accused Nos.2 and 17
        for two days.  Later she was taken  to  the  house  of  the
        relatives of  accused No.3.  It was from that house she was
        taken to Anbu Hospital.
         91.  P.W.28 is the Doctor in Anbu Hospital.  P.W.29
        is the nurse there.  Ext.P25 is the treatment card.    This
        discloses that her only complaint was constipation and back
        pain.   There  also  she did not disclose her true name and
        identity.  The doctor prescribed enema  and  an  injection.
        According  to him, "she was not terrified", "her heart beat
        was normal", though "she was very  weak",  and  "after  the
        treatment, patient  was relieved of her symptoms".  He says
        that "repeated intercourse may cause constipation".  P.W.29
        nurse administered enema.  According to her, she  had  been
        with P.W.3 for about 30 minutes.  P.W.3 did not during this
        time reveal  her  plight to this nurse also.  This evidence
        of P.W.28, P.W.29 and Ext.P25 also do not reveal any  rape.
        P.W.3  could  have, if she had been in the beastly clutches
        of the accused, told the doctor her true situation, if  she
        had been  in such predicament.  The inescapable probability
        is that even on such second occasion when she  visited  the
        doctor  she did not suffer from any such ailment as to make
        intercourse painful and unbearable.  Her physical condition
        then cannot convincingly contra indicate consent.
         92.  As already mentioned above, her sojourn of  40
        days  ended on 26/2/96 when she reappeared in the office of
        her father, P.W.1.  According to him, she was very weak and
        was not in a position to walk.  Inspite of that she was not
        taken to any doctor on that day.  Her mother is a nurse  in
        a Hospital.    She  also  did not take her to any hospital.
        She was brought near the police station of P.W.82  who  was
        investigating  the  man  missing  case  registered  as  per
        Ext.P1(a) FIR.  He did not take her statement.  He did  not
        even see  her.    She was not produced before a Magistrate.
        Inspite of all these she was allowed to go home with P.W.1.
        According to P.W.1, she disclosed the entire story  to  her
        mother.   She,  being a paramedical staff, did not think of
        taking her to hospital.  Next day also she was not taken to
        hospital.  She was brought to the police station  by  P.W.1
        again.   These  reveal at least a doubt that she was not in
        such an unhealthy position as P.W.3 or P.W.1 says in court.
        The theory that she could not have consented to any  sexual
        intercourse on 25/2/96 or the immediately preceding days is
        not  supported  by  her  physical condition as perceived by
        P.W.1 or his wife, who did not take her to  a  doctor  till
        28/2/96.
         93.    She  was  taken  to  a  doctor  for  medical
        examination only on 28/2/96  by  P.W.95.    P.W.73  is  the
        Doctor who  examined  her  at about 2.30 P.M.  on that day.
        Ext.P95 is the report of that medical examination.  It  did
        not  reveal  any  struggle by P.W.3, perhaps because of the
        passage of time as submitted by the Public Prosecutor.  But
        it is crucial that even P.W.3  had  no  case  of  any  such
        violent  physical  resistence  by her against the rapist at
        any time.
         94.  Vaginal examination  was  painful,  valva  was
        oedematous.  There  was infection.  There was purulent foul
        smelling discharge.    P.W.73  says  that   intra   uterine
        contraceptive device   can   also   cause  infection.    In
        chief-examination he says that  "she  would  have  suffered
        severe  pain  during  the sexual act if it had continued as
        stated by her during the period of infection'.  In  further
        cross,  he  says that, he examined vaginal wall and that he
        did not find it lacerated.   He  also  agreed  that  during
        violent  intercourse  "laceration  in  vaginal  wall occurs
        posteriorly".  In further cross-examination by the  accused
        he answered specific questions as follows:

         "On  the  condition  you  had  seen  when P.W.3 was
                examined by you, I  put  it  you  that  it  is  not
                possible to have sexual intercourse with P.W.3(Q).

         It  is  possible provided force and intimidation is
                used (A).  If force is used she  would  cry  loudly
                (Q) Yes (A)".

        P.W.3 has no case that she had even wept while  during  the
        alleged rapes  continuously,  much less any loud cry.  Even
        on the night of 24/2/96, there was, allegedly, rape on her.
        In spite of that no resistance mark was found on her  body.
        According  to  P.W.73,  the  Doctor  "there was no signs or
        evidence of  resistance".    According  to  him,  sign   of
        resistance is the most common feature in a case of rape and
        as  she  was subjected to violent sexual intercourse "there
        can be signs of resistance".  Of course,  as  submitted  by
        the Special Public Prosecutor, signs of resistance is not a
        conclusive factor  to  determine  consent as such.  But, in
        the over all circumstances of this case and  alleged  rapes
        continuously   for   days   together  by  several  persons,
        necessarily, it must  be  reckoned  as  a  relevant  input.
        Thus, the medical evidence in this case also does not offer
        any  specific  and  satisfactory probative corroboration to
        the testimony of P.W.3.
         95.   We are unable to persuade ourselves to accept
        the omnibus explanation that P.W.3, a girl of less than  17
        years  of  age, was terrified and all the pieces of conduct
        and circumstances which are incongruent to  the  theory  of
        absence  of  consent  deserves to be ignored on that score.
        The Investigating Officer - P.W.97 appears  to  have  felt,
        perhaps rightly, as it seems to us, that he need not unduly
        worry  about  the  acceptability  of  the evidence of P.W.3
        about want of conseent.  He appears to have  swallowed  the
        later  assertions  of  P.W.3  leaving  it  to  the court to
        consider whether P.W.3 should be believed or the benefit of
        doubt should be conceded to the accused.   One  should  not
        approach  the  question of acceptability of the evidence in
        an over simplified manner - that P.W.3 is a girl of  tender
        age i.e.    sixteen plus; that she has no reason to consent
        to sexual intercourse; that love, lust or money  could  not
        have  persuaded  her  to consent; and that consequently she
        would not have consented.
         96.  Money she needed.  She was  willing  to  raise
        the  same  even  by  objectionable  manner  admittedly - by
        misappropriating Rs.450/to be paid as hostel fees,  and  by
        clandestinely pledging  her ornaments to the jeweller.  She
        was admittedly willing to "go on a tour" with Accused  No.1
        without any specific plan for marriage and family life with
        him.   She  cladestinely  took her mother's sarees and cash
        with her when she left her home planning all  the  time  to
        deceive her  parents.    The learned Sessions Judge was too
        unsuspecting, non-cautious and willing  to  accept  P.W.3's
        evidence on want of consent.  Perhaps the error in approach
        lay there.    The  question  of  consent was decided by the
        learned  Sessions  Judge  without  cautious  consideration,
        without   critical   assessment,   without   assessment  of
        probabilities, without refering alertly to the law relating
        to burden of proof and benefit of doubt.  We are unable  to
        endorse that  very  approach.  The appreciation of evidence
        by court cannot be that of an indulgent unfortunate  parent
        of the  victim  girl.   Even in the wake of the unfortunate
        plight of P.W.3 and the trauma of the  parents,  the  court
        cannot lose  its  poise  and  be  swayed.    Objective  and
        critical analysis is the unavoidable duty of the court.
         97.  We do also  note  that  the  learned  Sessions
        Judge  did  not  at all consider the question whether there
        was manifestation of the alleged absence of consent on  the
        part  of  P.W.3 and whether the same was signified to those
        who had sexual intercourse with her.  Going by the case  of
        the  prosecution,  many  of  the  accused  went to her only
        assuming that she is a prosotitute.  Going to a  prostitute
        is improper   and   immoral.    It  offends  the  sense  of
        righteousness of the enlightened  members  of  the  polity.
        But  the  criminal court is not pronouncing on morality but
        culpability.  When most of them entered  her  room  or  she
        (P.W.3)  entered their room, the male indictees were guilty
        only of the immorality  of  going  to  a  woman,  who  they
        thought was  a  prostitute.   It becomes rape only when she
        conveyed her unwillingness within the  closed  room.    Her
        omnibus statement that to all who approached her inside the
        closed  room  she  had  verbally conveyed and signified her
        absence of consent cannot be readily swallowed  considering
        the anterior, immediate and subsequent conduct of hers.  At
        any  rate, we are persuaded to favourably consider the plea
        for benefit of doubt.
         98.  That most, if not all,  the  accused  had  not
        specifically pleaded consent cannot persuade this Court not
        to  consider that plea which arises on probabilities and on
        the basis of arguments raised.    The  conduct  alleged  is
        certainly   immoral,   by  accepted  norms  of  respectable
        behaviour.   That  the  accused   did   not   admit   their
        indiscretion/immorality  cannot  persuade us to ignore that
        contention.
         99.  While assessing broad  proabilities,  we  must
        note that P.W.3 and her parents needed an explanation to be
        offered  for consumption by the other members of the family
        and public.  They could not have  accepted  the  theory  of
        voluntary departure and immoral life of P.W.3, even if that
        were true  even.    To  save  their  honour, a version that
        pictures P.W.3 as an unwilling victim was essential.    The
        theory that no victim would advance a false version of rape
        as it would harm her as much or more than it would harm the
        indictee  has  no  application  in the facts of the instant
        case.
         100.  Here was a case where  an  explanation  which
        absolves P.W.3 of contumacious behaviour was needed to save
        P.W.3 and  her  family.  The hypothesis of the accused that
        such theory was pressed  into  service  on  27/2/96,  after
        P.W.3  returned  on  26/2/96  after  due  contemplation and
        reflection deserves   cautious   consideration.        That
        hypothesis cannot be discounted without careful evaluation.
         101.   In such circumstances, we find that there is
        no satisfactory proof of absence of consent so far as P.W.3
        is concerned or to show that the alleged  rapist  did  have
        the knowledge  that  she was not consenting willingly.  The
        benefit of doubt shall have to be given to the  accused  so
        far  as  the  accusation  for  the offence punishable under
        Sec.376(1) IPC is concerned.  Therefore,  giving  them  the
        benefit of doubt, the conviction under Sec.376(1) IPC shall
        have to be reversed in this case.
         102.     But    the    offence   punishable   under
        Sec.376(2)(g) IPC, as rightly pointed out  by  the  Special
        Public Prosecutor  is on a different pedestal.  The consent
        aspect when spoken  to  by  the  victim  gives  rise  to  a
        presumption  that occurrence was in the manner that she had
        spoken to, going by Sec.114A of the Evidence  Act.    P.W.3
        had  stated  that  there  was no consent from her part when
        more than one person raped her.
         103.  A detailed examination of the evidence  given
        by  P.W.3  reveals  that there had been only two occasions,
        when there were more than one person simultaneously  inside
        the  room  when such alleged intercourse had been committed
        on her.  One is in Hotel  Trisea  in  Kanyakumari  and  the
        other in  Hotel  Geeth  at Trivandrum.  On the morning when
        she reached Hotel Trisea along  with  Dharmarajan,  Accused
        Nos.2,  3  and  P.W.8,  Dharmarajan  committed  rape in the
        presence of others and Accused  No.3  had  asked  that  she
        shall  keep  quiet;  otherwise  she  would have to face the
        consequences.  The second occasion is the one when  Accused
        Nos.4  and  28  were  found  lying  naked on either side of
        P.W.3, by P.W.10 room boy of Hotel  Geeth  who  came  there
        raising  objection against three persons occupying a double
        room and to supply an extra bed for  them.    There  was  a
        wordy quarrel between Accused No.4 and P.W10 at that time.
         104.   On  the  first  occasion,  P.W.3 had gone to
        Trisea Lodge with Dharmarajan and Accused No.3 from  Theni.
        Necessarily, in the light of the facts discussed above, her
        theory  of  absence  of  consent cannot be believed as such
        without due assurance.  Sec.114A enacts only  a  rebuttable
        presumption of   fact   and   not   law.    The  amount  of
        circumstances  ncessary  to  rebut  the  presumption  would
        certainly vary  from  case to case.  The consent aspect has
        already been discussed above and found that  it  cannot  be
        held beyond doubt that there was absence of consent.  These
        are  the circumstances in rebuttal of the presumption also.
        The only corroboration for her evidence  on  gang  rape  is
        from P.W.8.   She  was an accused initially.  She was later
        transformed as  a  witness.    It  was  held  in  Vemireddy
        Satyanarayan Reddy  v.  State of Hyderabad (1956 SC 379) as
        follows:

          "There  is  no  warrant  for  the   extreme
                pro-position that if a man sees the perpetration of
                a  crime  and  does  not  give information of it to
                anyone else, he might well be regarded in law as an
                accomplice and that he could be  put  in  the  dock
                with the actual criminals.  Indeed, there can be no
                doubt  that  the  evidence  of such a man should be
                scanned with much caution and  the  Court  must  be
                fully  satisfied  that  he  is  a witness of truth,
                especially when no other person was present at  the
                time to see the murder.

          Though  he was not an accomplice, the Court
                would  still   want   corroboration   on   material
                particulars  as he is the only witness to the crime
                and as it would be unsafe to hang the accused (four
                in this case) on  his  sole  testimony  unless  the
                Court  feels  convinced  that  he  is  speaking the
                truth.  Such corroboration need not, however, be on
                the  question  of  the  actual  commission  of  the
                offence; What the law requires is that there should
                be  such  corroboration of the material part of the
                story connecting the accused with the crime as will
                satisfy  reasonable  minds  that  the  man  can  be
                regarded as a truthful witness."

        It  is  not  therefore  safe  to  implicitly believe P.W.8.
        P.W.8 who continued on the array of  accused  was  on  fine
        morning  transposed  from the array of accused to the array
        of witnesses by PW.97.  From the date of her  arrest  viz.,
        9/4/96  till 24/8/99 when she was deleted from the array of
        accused as per Ext.P181 report, she was an  accused.    The
        remand  report  submitted  after  her arrest shows that her
        statement under Sec.161 Cr.P.C.  was recorded.   But  after
        she  was  transposed as a witness it is asserted that there
        was no earlier statement recorded from her.  The contention
        of the accused that the  prosecution  is  suppressing  that
        statement  and  the  present  161  and  164 statements were
        obtained by her on the price of her transposition from  the
        array of accused to that of witnesses does appear to be one
        with force.      One  weak  piece  of  evidence  cannot  be
        strengthened by another one of  the  same  type.    So  the
        alleged  gang  rape  at  Hotel  Trisea  is not conclusively
        proved.
         105.  Coming to the second  occasion,  when  P.W.10
        found  P.W.3  in  between the two naked males, she had been
        hiding her face in the bed lying face  down.    P.W.10  has
        spoken so.    Even in spite of quarrel between Accused No.4
        and P.W.10, she did not seek any help from  P.W.10  to  get
        out  of  the  pains  of  the alleged gang rape committed by
        Accused Nos.4 and 28.  Therefore, absence of consent is not
        at all discernible from that conduct.  It  is  also  to  be
        noted  that  Accused  Nos.4 and 28 had been sleeping inside
        the room on either side of P.W.3 without even  locking  the
        door from  inside.    That  is evident from what P.W.10 had
        spoken to.  According to him,  when  he  knocked  the  door
        there  was  no  response  Hence he just opened the door and
        found three persons inside the room.  It does not stand  to
        commonsense  that two persons will commit gang rape without
        even taking the precaution of locking the room.   When  the
        room  had  not been locked, it would have been easy for her
        to escape or to attract the attention of  others,  so  that
        she could be rescued.  The confidence of the male indictees
        is indicative  of  the  situation  inside  the room.  It is
        certainly not suggestive or confirmative of the  theory  of
        absence of  consent.  The presumption available in terms of
        Sec.114A of the Evidence Act stands rebutted in so  far  as
        the  accused  are  concerned  in  respect  of  the said two
        incidents.
         106.  The other incidents of gang rape  alleged  by
        the  prosecution  is  in the Panchayat Rest House in Kumaly
        and elsewhere.  It is true, as spoken  to  by  P.W.3,  more
        than one person had sexual intercourse with her in the same
        place on  the  same  day.    It  has  also  come out in her
        evidence that  more  than  one  person  had  simultaneously
        approached her  or  was  brought  to  show  her.    But her
        evidence is that there was none other than  the  individual
        rapist when  the alleged rape had occurred.  At the risk of
        repetition, we must note that according to the prosecution,
        more than one person came to her for the purpose of illicit
        sexual intercourse.  Till they entered  the  room  and  she
        allegedly   signified   her   unwillingness,  they  had  no
        intention or common intention of committing  rape  or  gang
        rape.   Admittedly,  at  that place, at the time of alleged
        rape none else than the alleged rapist was present.   Their
        individual  separate  acts  of intercourse become rape only
        when  inside  the  room  P.W.3  allegedly   signified   her
        unwilligness.   Ingredients  of  common intention to commit
        rape or jointness in action are significantly absent.    In
        order  to  bring a rape within the definition of gang rape,
        as per Explanation-I to Sec.376 IPC a woman must have  been
        raped  by  "  one  or  more in a group of persons acting in
        furtherance of  their   common   intention".      In   such
        circumstances,  each  such  person  shall be deemed to have
        committed gang rape.  The Special Public Prosecutor is well
        justified in contending that there need not be a  completed
        act of  rape  by all the companion rapists.  His contention
        is supported by the decision reported in  Bhupinder  Sharma
        v.   State  of Himachal Pradesh (AIR 2003 SC 4684) where it
        was held that:

          "In  cases  of  gang  rape  the  proof   of
                completed act of rape by each accused on the victim
                is not   required.    The  statutory  intention  in
                introducing Explanation (1) in relation to  Section
                372(2)(g)  appears to have been done with a view to
                effectively deal with the growing  menace  of  gang
                rape.   In  such circumstances, it is not necessary
                that the prosecution should adduce clinching  proof
                of  a  completed  act  of  rape  by each one of the
                accused on the victim or on each one of the victims
                where there are more than one in order to find  the
                accused  guilty of gang rape and convict them under
                Section 376, IPC.  (See Promod Mahto and Others  v.
                The State of Bihar (AIR 1989 SC 1475)".

        But  at  the same time, all the persons must be acting in a
        group in furtherance of their common intention, thereby the
        rapists must form a group at the time of the commission  of
        the offence.
         107.   The  Public  Prosecutor submits that rape by
        one after another also comes within the definition of `gang
        rape', even if one is not present when the other  committed
        rape.   He cited the decision in Pramod Mahto and Others v.
        State of Bihar (1990 SCC (Cri) 206) where it was held that:

         "Once it is established  that  the  appellants  had
                acted  in  concert  and  entered  the  house of the
                victims and thereafter raped  P.W.1  Jaiboon  Nisa,
                then  all of them would be guilty under Section 376
                IPC in terms of Explanation  I  to  clause  (g)  of
                sub-section  (2) of Section 376 IPC irrespective of
                whether she had been raped by one or more of  them.
                The Explanation in question reads as under:

           "Where  a  woman is raped by one or
                        more  in  a  group  of  persons  acting  in
                        furtherance of their common intention, each
                        of  the  persons  shall  be  deemed to have
                        committed gang rape within the  meaning  of
                        this sub-section."

        This dictum does not in any way support his contention.
         108.   A measure of jointness in action and forming
        of a single group is essential.  It was held by the Supreme
        Court in Ashok Kumar v.  State of Haryana (AIR 2003 SC 777)
        that:

          "Charge  against  the  appellant  is  under
                S.376(2)(g), IPC.  In order to establish an offence
                under  S.376(2)(g),  IPC,  read  with Explanation I
                thereto, the prosecution must  adduce  evidence  to
                indicate  that  more than one accused hadf acted in
                concert and in such an  event,  if  rape  had  been
                committed  by  even  one,  all  the accused will be
                guilty irrespective of the fact that she  had  been
                raped  by  one  or  more  of  them  and  it  is not
                necessary for the prosecution to adduce evidence of
                a completed act of rape by each one of the accused.
                In other words, this provision embodies a principle
                of  joint  liability  and  the  essence   of   that
                liability  is  the  existence  of common intention;
                that common  intention  presupposes  prior  concert
                which   may  be  determined  from  the  conduct  of
                offenders revealed during the course of action  and
                it  could  arise and be formed suddenly, but, there
                must be meeting of minds.  It is not enough to have
                the same intention independently  of  each  of  the
                offender.   In  such  cases, there must be criminal
                sharing marking out a ccertain measure of jointness
                in the commission of offence."

        The person acting in a group in furtherance of their common
        intention is distinguishable from  several  persons  coming
        with  the  similar  intention  of having sexual intercourse
        with a girl individually.  Then there will not  be,  acting
        in  furtherance  of common intention by group of persons as
        enjoined by the Explanation I to Sec.376.   Even  going  by
        the  evidence  of  P.W.3,  persons  came  together with the
        similar intention and approached her for intercourse.   But
        at  the time of intercourse, as spoken to by her, there was
        presence of only one.  Even if she expressed  unwillingness
        to that person who had intercourse to make such intercourse
        amount  to  rape, it cannot be said that the person waiting
        outside for his turn of intercourse is a party joined in  a
        group  in  the  commission of the offence of rape allegedly
        committed by the person already inside.  There was  no  act
        in  furtherance  of  common intention by the person who was
        waiting out side who did not know that  the  girl  had  not
        consented.   If at all there was any intention, it was only
        immoral similar intention of having intercourse and  not  a
        culpable common intention to commit rape.
         109.   Thus  there  is  no  proof  of any gang rape
        committed  by  any   of   the   accused   in   this   case.
        Consequently, the conviction in that regard shall also have
        to be set aside.
         110.    There   is   also   an  allegation  against
        Dharmarajan that he  had  robbed  PW.3  of  her  money  and
        ornaments.   He  was found guilty of the offence punishable
        under Sec.392 IPC.  Even going by the  evidence  of  P.W.3,
        she was alone in the room on several occasions including in
        Metro  Lodge  at  Kottayam, Anand Lodge at Ernakulam and in
        the house of Accused No.16 at Vanimel in Calicut.    If  at
        all  he  had  an  intention of taking away the jewellery or
        cash from the hands of P.W.3, it was easy for him  to  grab
        it when  she  was alone with him there.  On the other hand,
        the case of P.W.3  is  that  she  had  been  taken  to  the
        jewelers  and  on  the way while in autorickshaw and in the
        jewellery shop she was forced to part  with  the  jewellery
        like ear  stud,  ear drops, silver anklets etc.  That story
        cannot be believed.  If at all Dharmarajan had an intention
        to rob her, he had ample opportunity to do  so  in  several
        places  at Kottayam, Ernakulam and at Vanimel while she was
        alone in a room with him.  The idea of  taking  the  victim
        also  to  the  jewellers and threatening and compelling her
        there to part with ornaments does  not  inspire  us.    The
        allegation of robbery is thus inherently improbable and not
        convincing.  Therefore, the conviction under Sec.392 IPC in
        so far as Dharmarajan is concerned also cannot be stated to
        be justified.    The  evidence of P.Ws.34 and 35, the owner
        and the salesman in the  jewelleries  concerned  where  the
        ornaments of P.W.3 had been sold is also not helpful so far
        as the  prosecution  is  concerned.    It will, at best, be
        revealed from their evidence that P.W.3 was also a party to
        give away the ornaments  to  Dharmarajan  for  being  sold.
        What  are  recovered are only M.Os.19 and 20 ingots and not
        the ornaments  allegedly  taken  away.    Necessarily   the
        conviction  under Sec.392 IPC is not justified and it is to
        be reversed.
         111.  Now we will  come  to  other  offences  under
        Secs.366A and  372 IPC relating to sex trade.  The offences
        under Secs.372 and 373 IPC have been  alleged  against  all
        the accused  in  the  1st  case.  But all of them have been
        acquitted of the offences under the said counts.  No appeal
        has been preferred by the State against  the  acquittal  of
        the  35 accused in S.C.No.187/99 of the offences punishable
        under Secs.372 and 373  relating  to  sex  trade.    So  we
        cannot,  in  the absence of an appeal by the State, examine
        whether the said 35 persons are guilty of  the  offence  of
        sex trade punishable under Sections 372 and 373 IPC.
         112.  Accused No.1 in the first case alone had been
        convicted under  Sec.366A IPC principaly.  Accused Nos.1 to
        8, 12, 14 and 17 had been convicted for the  offence  under
        Sec.120B read  with  Sec.366A  IPC.    The  conspiracy  has
        already been  found  against  the  prosecution.     Placing
        reliance  on  the  indications  regarding  letter of P.W.3,
        involvement of accused No.1 has been ruled out as he had no
        role in the alleged conspiracy.    Even  according  to  the
        prosecution,  he  had  no role at all except on the initial
        day to kidnap the girl.  Kidnapping is also  found  against
        the prosecution.  So there arises no question of commission
        of  the offence under Sec.366A by accused No.1 in the light
        of the prosecution case itself.  Therefore, the  conviction
        of  Accused No.1 under Sec.366A IPC and Accused Nos.1 to 8,
        12, 14 and 17 for the offence of conspiracy to commit  that
        offence cannot be sustained.
         113.    Even   going   by   the  admitted  case  of
        Dharmarajan in his Sec.313 statement, P.W.3 had come in his
        hands at the park in Ernakulam.    Thereafter,  as  further
        admitted  by  him,  he had taken her from the park to Anand
        Lodge in Ernakulam, to Palakkad, to Vanimel, to Kumali  and
        to Theni.    During  the  journey and stay at those places,
        there had been sexual intercourses by several  with  P.W.3.
        Admittedly,  P.W.3  was  below  the age of 18 years and was
        therefore a minor.  P.W.3 has also  deposed  that  she  had
        been  moved  from  place  to  place and subjected to sexual
        intercourse.  Dharmarajan has no case that she  is  in  any
        way related  to  him.  She did not and could not have moved
        from place to place on her own.  So, in order to  take  the
        girl   with  him,  there  must  have  been  inducement;  in
        whatsoever form.  Thus, it is clear from  the  evidence  of
        P.W.3  and  as  admitted  by  Dharmarajan that he had taken
        P.W.3 from place to place.  At such  places  she  had  been
        subjected to  illicit intercourse.  She was thus taken from
        place to place knowing that she was likely to be  used  for
        such purpose.    The intercourse, the others had with P.W.3
        was illicit intercourse.  Thus, going by  the  evidence  of
        P.W.3   and   in   the  light  of  the  admitted  stand  of
        Dharmarajan, it has  been  conclusively  and  beyond  doubt
        proved  that  the  offence  under  Sec.366A  IPC  has  been
        committed by Dharmarajan.
         114.  It has also come out in the evidence of P.W.3
        that several other persons did have inter course with  her.
        This  had happened and could only happen if Dharmarajan had
        disposed her for that purpose.  Otherwise she will not come
        in the hands of others for such intercourse.  She  was  not
        married to   any  one  of  them.    So  those  are  illicit
        intercourses coming within Explanation 2  to  Sec.372  IPC.
        Thus,  it  is  clear  that  Dharmarajan  has  committed the
        offence punishable under Sec.372 IPC as well.
         115.  It is submitted by  counsel  for  Dharmarajan
        that  there  was  no  monetary  transaction  to  reveal the
        offence under Sec.372 IPC and there is no evidence to  show
        that PW.3 had been sold for money or let to hire for money.
        Apart  from  the  facts  admitted  by him, it is clear that
        Dharmarajan had taken her to several  places  including  to
        Kanyakumari  and thereafter from the house of Accused No.38
        to Kuravilangadu.  Exts.P59 and P59(a) and the evidence  of
        P.W.47 show that Dharmarajan has taken P.W.3 to Hylux Lodge
        in Palghat.    Q.8  identified by P.W.76 handwriting expert
        corroborates this aspect.  Exts.P62  and  62(a)  prove  his
        presence with  P.W.3 at Indira Lodge, Kambam.  This is duly
        fortified by Q.22 and 22(a).  P.W.50 the Manager of Thottam
        Lodge, Muvattupuzha,  testifies  his  presence  with  P.W.3
        there.   Exts.P74  and  74(a)  fortified  by Q.29 and 29(a)
        satisfactorily prove this  fact.    P.W.4  Receptionist  in
        Aroma Lodge identifies Dharmarajan as the son-in-law of one
        among  their permanent customers and that he had been there
        with a girl.  P.W.3 deposes that she had been taken  there.
        Thus,  it is proved beyond doubt that he had taken P.W.3 to
        several places.  There is also  evidence  that  during  the
        sojourn there had been intercourses with her by several and
        such intercourses are illicit intercourses so far as a girl
        like P.W.3  under the age of 18 years was concerned.  There
        is evidence from the mouth of P.W.3 herself.   It  is  also
        the  admitted  case  of Dharmarajan that she had been taken
        from place to place.  This was done  knowing  that  it  was
        likely  that  she  would be seduced and offered for illicit
        intercourse with others.  Accused Dharmarajan can, in these
        circumstances,  safely  be  held  to  have  committed   the
        offences  punishable under Secs.366A and 372 IPC subject of
        course to the decision on the  question  of  unfairness  in
        investigation/ trial and consequent prejudice.
         116.   We  have  not  in  detail  adverted  to  the
        evidence of P.W.3 about the details of her movements  after
        she  left  the  hostel  on 16/1/96 and reached her father's
        office on 26/2/96.   We  are  satsified  broadly  that  her
        evidence  regarding her movements and the persons with whom
        she had  intercourses   need   not   be   doubted.      The
        Investigators have  cross checked such movements.  Inasmuch
        as we have conceded the benefit of doubt to  the  indictees
        on  the  question  of  consent  we  are  not  proceeding to
        consider the evidence in detail.  We do take  note  of  the
        contentions  raised by some of the accused that there is no
        sure substantive evidence of identification  in  court  and
        that  the  learned  Sessions Judge has improperly chosen to
        place reliance on evidence of identification  in  the  Test
        Identification   parade   in  the  absence  of  substantive
        evidence of identification.   Contentions  have  also  been
        raised  by  the accused regarding the propriety of the Test
        Identification parade  held.    In  view  of  our  findings
        rendered  earlier,  we  are  not  embarking  on  a detailed
        discussion on those aspects.
         117.   We  shall  now  consider   the   contentions
        regarding   infraction  of  procedural  safeguards  in  the
        interests of fair trial and the consequent  prejudice  that
        has resulted.    In  this  regard  it  is  contended by the
        accused including Dharmarajan that the  prosecution  having
        not furnished to the accused the entire statements given by
        P.W.3 to the Investigating Officers, there was prejudice in
        moulding their  defence.  Even according to the prosecution
        the statements of  P.W.3  recorded  by  P.W.93  on  8/3/96,
        10/3/96  and  15/3/96  which  in any view of the matter the
        prosecution is bound to produce and furnish compies had not
        been  produced  in  court  initially  as   enjoined   under
        Sec.173(5) Cr.P.C.    and copies thereof were not furnished
        to the  accused  as  enjoined  under  Sec.207(iii)  Cr.P.C.
        According  to  the accused, two other statements from P.W.3
        were also not furnished to them.   This  disabled  them  to
        mould  their  defence  from the initial stage, before P.W.3
        faced cross-examination.  It may  be  true  that  the  said
        statements  had  been produced belatedly in the first case.
        That did not wipe off the prejudice already occasioned,  it
        is submitted.    Though produced, copies were not furnished
        to them, it is further contended.    Certainly,  these  are
        contentions which have to be considered at length.
         118.   The  decision  cited  by the accused in this
        regard reported in Kottaya  v.    Emperor  (AIR  (34)  1947
        P.C.67) fortifies  this  contention.    When the statements
        relied on by the prosecution are not made available to  the
        accused,  "an  inference,  which is almost irresistible, of
        prejudice to the accused" arises.    The  counsel  for  the
        accused has also relied on the decision of a Division Bench
        of this  Court reported in Murali v.  State of Kerala (2003
        (3) KLT 226) where this Court had held that  non-supply  of
        Sec.161  statement  obtained  from the occurrence witnesses
        will cause prejudice.  At the same time, the learned Public
        Prosecutor has relied on the decision  reported  in  Sunita
        Devi v.  State of Bihar (AIR 2004 SCW 7116) to substantiate
        that every non-supply shall not be reckoned as amounting to
        prejudice.   There  must be proof of miscarriage of justice
        as held in by a Full Bench of  this  Court  in  Rugmini  v.
        State of Kerala (1986 KLT 1356).
         119.   In  the decision of the Privy Council it had
        been held that the non-supply of certain statements  relied
        on  by  the  prosecution  will  result  in  an irresistible
        inference of prejudice to the accused.  There cannot be two
        opinions on this proposition of law.  It has also been held
        by a Division Bench of this Court in Murali's case to which
        one among us (Abdul Gafoor,J.) was party that non-supply of
        the document would result in prejudice.  But that  decision
        has to  be  read  in  the  light of the facts therein.  The
        facts in Murali's case were that P.W.2 deposed that he  had
        seen  the  injury  being  inflicted  by  the accused on his
        step-father, the deceased.   But  some  how  or  other  the
        accused  got  smell about an earlier statement made by that
        witness to the police wherein he had not stated that he had
        seen the occurrence.  The copy of the  statement  available
        with  the officer superior to the Investigating Officer was
        summoned to  be  produced.    P.W.23,   the   Investigating
        Officer,  thereupon deposed that he had recorded an earlier
        statement from P.W.2, wherein he had not stated that he had
        seen the occurrence.  It was also revealed that P.W.23  had
        counselled  P.W.2 and obtained a different statement as was
        spoken to before the trial court.  Thereafter, the original
        of the the earlier statement given by P.W.2 was  torn  off.
        It  was  in the above circumstances P.W.23 admitted that he
        had obtained statement of P.W.2 wherein  P.W.2  had  stated
        that he  had not seen the occurrence.  It had also come out
        in that case that P.W.4 had come to the scene of occurrence
        and had seen the accused waiting there.  After he had gone,
        he heard the cry and rushed back to the scene of occurrence
        to see the deceased lying injured and the  accused  running
        away with  weapon.    It had also come out in evidence that
        Sec.161 statement recorded from P.W.4 on  13/7/96  had  not
        been produced  before the court below.  The court could not
        guess what really he had told to  the  police  on  13/7/96.
        Equally so  was  the  accused.  Therefore, in that case the
        version  of  both  the  occurrence  witnesses  was  not  in
        conformity  with the statements that had been given earlier
        to the Investigating Officer, as admitted by P.W.23 in that
        case.  It is in that situation that the  non-production  or
        non-furnishing  of  copies  of  Sec.161 statements recorded
        from the only occurrence witnesses were found to be causing
        prejudice in a case of murder.    Necessarily  that  dictum
        cannot  ipso  facto apply to this case in toto to hold that
        there was total prejudice.  In the recent decision  of  the
        Supreme Court  reported  in  Sunita Devi v.  State of Bihar
        (AIR 2004 SCW 7116) the Apex Court has made it clear that:

         "The documents in terms of Sections 207 and 208 are
                supplied to make the accused aware of the materials
                which are sought to be utilized against him.    The
                object  is  to enable the accused to defend himself
                properly.  The idea behind the supply of copies  is
                to  put him on notice of what he has to meet at the
                trial.  The effect of non-supply of copies has been
                considered by this Court in Noor Khan v.  State  of
                Rajasthan (AIR 1964 SC 286) and Shakila Abdul Gafar
                Khan (Smt.) v.  Vasant Raghunath Dhoble and Another
                (2003 (7) SCC 749).  It was held that non-supply is
                not necessarily  prejudicial  to  the accused.  The
                Court has to give  a  definite  finding  about  the
                prejudice or otherwise."

        It  was  thus  held  that non-supply of any document is not
        necessarily prejudicial to the accused always.   The  court
        has  to  give  a  definite  finding  about the prejudice or
        otherwise occasioned.  It is, in these circumstances,  that
        we  have  to  consider  the effect of non-supply or belated
        supply of the copies of the statements from P.W.3.
         120.     Non-production/non-furnishing    of    the
        statements taken  from  PW.3  under Section 161 Cr.P.C.  is
        the reason for  prejudice,  according  to  the  appellants.
        Altogether,  ten  statements  were  allegedly obtained from
        PW.3 - one by PW.82, three by PW.93, two by PW.91  and  two
        more statements by PW.97.  Apart from these admitted eight,
        it  is  also  admitted  by the prosecution that a statement
        stated to be taken from PW.3 on  28.2.1996  by  PW.95  also
        forms part  of  the  case  diary.    But,  according to the
        prosecution, this is not a truly recorded one.    So,  they
        disown it.      This   statement,   for   the   purpose  of
        consideration of the contention regarding  prejudice,  will
        hereafter be referred to as the "disowned statement".
         121.    It  is  alleged  by  the  counsel  for  the
        appellant/accused that on 27.2.1996, a statement  had  been
        taken  by  PW.82  from PW.3 as transcribed by DW.10, who is
        also DW.6 in the second case.  It is submitted that this is
        the real statement obtained by PW.82 from PW.3 and not  the
        one now  forming  part  of  the  case  records.    But  the
        prosecution does not admit such a statement.  According  to
        them,  the  statement  recorded  by  PW.82  is  the one now
        available in the case records.  We will, for  the  sake  of
        convenience, to discuss the aspects on this point, describe
        the  statement  admittedly taken by PW.82, now forming part
        of the case records, as the `admitted  statement'  and  the
        statement  claimed  by  the  appellants as taken originally
        from  PW.3,  which  is  disputed  by  the  prosecution,  as
        "Ext.C2", marking   it   so.     Ext.C2  is  the  "disputed
        statement."
         122.  It is the contention of the  appellants  that
        in  order to move a bail application on behalf of Regi, the
        4th accused, one among  his  friends  had  approached  some
        political  leaders to obtain certain case records, so as to
        instruct his advocate.  In that attempt, his friend came in
        contact with DW.1 in the second case and he had obtained  a
        photo  copy  of  Ext.C2 statement of PW.3 then available in
        the case records with the help of a police constable.    It
        was  produced  in the court during trial, but the court did
        not allow it to be admitted in evidence.  Thereupon, it  is
        common  case that, that issue had come up for consideration
        before this court and this court in Dharmarajan v.    State
        of Kerala {2002(2) KLT 161} held as follows:

         "The  impugned order cannot be sustained and is set
                aside.  If the learned Sessions Judge is  satisfied
                on  the basis of the materials available before him
                in the course of trial that the  statement  of  the
                prosecutrix,  alleged  to have been recorded by the
                investigating  officer  (ASI-P.K.Balakrishnan)   on
                27.2.1996, is in fact recorded by him personally or
                at  his  dictation  or  direction by another police
                officer, effective opportunity should be  given  to
                the  accused/revision  petitioner  after  supplying
                copy of that statement to test the veracity of  the
                evidence given by her by allowing him to contradict
                her  with  that  previous  statement  in the manner
                provided under S.145 of the  Evidence  Act  drawing
                attention of her to that part of the statement."

        In the light of this pronouncement, it was the bounden duty
        of  the court below to examine as to whether such statement
        had really been recorded by PW.82.  When such a dispute had
        arisen, necessarily, it goes deep  into  the  root  of  the
        case.   Any  court  is bound to examine it at the threshold
        itself, even without any direction.   Accordingly,  in  the
        second  case,  it  was specifically dealt with and found by
        the court below that no such Ext.C2  statement  had  really
        been  recorded  at the instance of PW.82 from PW.3 and that
        there  was  no  occasion  for  DW.10  to  transcribe   that
        statement.   The  decision in that regard also is very much
        assailed in these appeals.
         123.  It has also come out  that  three  statements
        recorded  by PW.93 Circle Inspector, Devicolam from PW.3 on
        8.3.1996, 10.3.1996 and 15.3.1996 were also not produced in
        the court or furnished to the accused in  the  first  case.
        Of course, later, on a petition and after hearing, based on
        an order, those three statements were produced in court far
        belatedly,  after  the examination of PW.3 was over in that
        case.   Those  statements  will  be  referred  to  as   the
        statements  dated  8.3.1996, 10.3.1996 or 15.3.1996, as the
        case may be, even though the second  among  them  does  not
        bear any  date.    Even  in the second case, those were not
        initially produced by the prosecuting agency.  The  accused
        Dharmarajan had to move a petition for production and it is
        based  on  an order from the court, those had been produced
        and  made  available  before  the   commencement   of   the
        examination of PW.3, who was examined as PW.1 in that case.
        Thus,  Ext.C2,  disowned statement and the statements dated
        8.3.1996, 10.3.1996 and 15.3.1996 are the  five  statements
        not  produced  or  furnished  to  the  accused resulting in
        alleged prejudice.
         124.  So, we have now to consider which  among  the
        two  statements,  stated  to  be recorded on questioning by
        PW.82,  is  the  real  statement  recorded  from  PW.3   on
        27.2.1996.   For  this  purpose,  we have to go through the
        case diary and ascertain  the  contents  of  the  "admitted
        statement",  notwithstanding  the  provision  contained  in
        Section 162 Cr.P.C., but keeping in mind that it should not
        be made use of as evidence in this case.  At the same time,
        as the copies of Ext.C2 are with either party and as either
        party has  knowledge  about  its  contents  and  as  it  is
        referred  to in the impugned judgment, the contents thereof
        shall  also  be  dealt  with,  keeping  in  mind  the  same
        precaution.   That  was  why  we refrained from considering
        this aspect earlier in this judgment, while discussing  the
        evidence adduced.
         125.   To  substantiate  that  Ext.C2  is  the real
        statement recorded from PW.3 by PW.82, several aspects  are
        pointed out by the appellants.  First, it is submitted that
        a  copy  of  this was obtained on behalf of the accused, by
        DW.1  for  the  purpose  of  moving  a  bail   application.
        Secondly, it is submitted that when the case diary was made
        available  to  the District and Sessions Judge, Thodupuzha,
        during the hearing of  that  bail  application,  the  Judge
        seems  to have examined this statement given by the victim.
        This is evident from the reference to the prosecution  case
        made mention of in the bail order Ext.D14, which is Ext.D29
        in the  second case.  The reference to the statement of the
        victim therein has similarity to the contents contained  in
        Ext.C2.   Thirdly  it is submitted that Ext.X2 crime ledger
        kept by PW.95 shows that the pages  relating  to  the  case
        diary  mentioned  in Ext.X2 correspond to the number of the
        pages of Ext.C2,  rather  than  the  "admitted  statement".
        Fourthly, it is submitted that Ext.C2 refers to one Sivaji,
        who is  alleged  to  have  molested the victim.  But in the
        admitted statement, no such name is appearing.    The  name
        "Stephenji" appears   therein.     Linking  Ext.C2  to  the
        statement  dated  10.3.1996  recorded  by  PW.93,   it   is
        submitted  that  PW.3  had  clarified to PW.93 that she had
        stated that:

         "          
              
              ."
         (I have stated to police as Stephenji.  I have  not
                stated as Sivaji).

        This  portion  of  that  statement  has come in evidence as
        Ext.D2(b).  If PW.3 had to say so to  PW.93  on  10.3.1996,
        there  must  have  been a reference to Sivaji in any of her
        earlier  statements,  so  that   PW.93   had   to   get   a
        clarification.   On  the basis of Ext.D2(b) it is submitted
        that the existence of Ext.C2 is probabilised.  Fifthly,  it
        is  also  submitted referring to the evidence of the victim
        who was examined as PW.1 in the second case  that  she  had
        deposed  in  the court below that Dharmarajan had taken her
        to the Park in Ernakulam before  they  checked  into  Anand
        Lodge at  Ernakulam,  on  17.1.1996.  Ext.C2 also refers to
        the visit to the park along with Dharmarajan  on  the  said
        day.   There  was  no reference to the visit to the park in
        any statement including the admitted one recorded by PW.82.
        Sixthly, it is contended by the appellants that Ext.C2 also
        contains a version by the victim that she  had  gone  along
        with Dharmarajan for a Hindi movie, after checking into the
        Anand Lodge,  Ernakulam at about 6.45 P.M.  To substantiate
        this, Dharmarajan had  attempted  to  produce  a  newspaper
        dated  17.1.1996  to  show  that a Hindi film "Gambler" was
        being exhibited in one among  the  theatres  in  Ernakulam.
        Almost similar  name  is  referred  to  in Ext.C2.  But the
        court did not permit due proof of the said  news  paper  by
        summoning  its  circulation  manager, on the ground that it
        was a protracting tactic adopted by the  accused.    It  is
        submitted that this aspect is referred to, to show that the
        accused  Dharmarajan had taken effective steps to prove the
        real existence of Ext.C2 referring to this movie aspect  as
        well.
         126.    Existence   of   Ext.C2  is  sought  to  be
        substantiated by pointing out reference to  certain  minute
        details  like  name  of one class mate of PW.3 viz., Little
        Flower, names of her teachers viz., Sister Linet and Sister
        Andrissamma, route to the house of Accused No.39 where PW.3
        had stayed etc.  which were known to  PW.3  alone  at  that
        time.   So Ext.C2 could not have been recorded without PW.3
        disclosing those facts known to her alone.   These  details
        were not available in any other records.
         127.   The existence of Ext.C2 is also sought to be
        substantiated by  referring  to  the  "disowned  statement"
        stated to   be   recorded  by  PW.95,  as  well.    It  is,
        admittedly, a part of the case records.  That statement has
        been recorded on the next day i.e.  28.2.1996.    There  is
        much  dispute  from  the  side  of  prosecution  about  the
        veracity of the `disowned statement', as according to them,
        it was one manufactured by PW.95 to screen off  several  of
        the accused.    `Disowned  statement'  also  refers  to one
        `Vikasini',  with  whom  PW.3   had   been   entrusted   by
        Dharmarajan for  a  stay for four days.  The very same name
        appears in Ext.C2 in the same context.   Referring  to  the
        `disowned  statement',  it  is  submitted that existence of
        Ext.C2 is thus fortified.  The admitted statement does  not
        refer to  Vikasini.    Instead, it refers to that person as
        "Vilasini".  If Ext.C2  was  not  there  and  the  admitted
        statement  was  the real statement, the name Vikasini could
        not  have  crept  into  the  disowned  statement,   it   is
        contended.
         128.   It  is further submitted that the contention
        of the prosecutor that there was no occasion for P.W.95  to
        record  `disowned  statement'  is  belied  by  Ext.X 11(a),
        weekly diary of PW.95, which shows that the victim had been
        questioned on 28.2.1996 at about 10.30 A.M.  Ext.X 11(a) is
        a document duly kept in the normal course of duty.    There
        is no  reason  to disbelieve it.  In her evidence PW.3 also
        admits that she had been questioned by PW.95.  It  is  also
        evident  from Ext.X 11(a) that PW.3 had been taken by PW.95
        to PW.73, the doctor, for medical examination at 1 P.M.  on
        that day.  PW.3 had also deposed  before  the  court  below
        that  she had come to the Munnar Police Station by about 11
        O' clock.  Necessarily, there was much probability  of  her
        being  questioned  by  PW.95,  who  had admittedly taken up
        investigation of the case by that time.  The entry in Ext.X
        11(a) that she had been questioned by him at 10.30 A.M.  on
        that day becomes more probable in the light of the evidence
        on record as discussed above.
         129.   When  PW.3  had  admitted  that  PW.95   had
        questioned   her,   necessarily,  facts  revealed  in  that
        questioning, in the normal course, as in the  case  of  any
        investigating  officer,  must  have been reduced to writing
        based on the note he may prepare.  It is also spoken to  by
        PW.3 that  she came to the station at 11 A.M.  and that she
        had been taken to the doctor from the  station  at  1  P.M.
        Necessarily,   there  was  sufficient  time  available  for
        questioning PW.3 and to ascertain the details from her.  As
        admitted by the prosecution, PW.95 had been entrusted  with
        the investigation  of the case by that time.  It is also to
        be noted that an  investigating  officer  like  the  Circle
        Inspector who takes up investigation immediately would have
        questioned  the  victim  in the normal circumstances and in
        the normal course of his duty.  It  is  also  to  be  noted
        that,  even  according  to PW.93, the investigating officer
        who succeeded PW.95, the `disowned statement' was available
        in the case diary when he had taken up investigation of the
        case, on transfer from PW.95  on  8.3.1996.    Thus,  these
        details  are  sufficient  enough  to show that the disowned
        statement dated 28.2.1996 is one duly  recorded  by  PW.95,
        the  investigating officer in this case at that time in the
        normal conduct of  the  investigation  and  there  was  all
        probabilities  that it has been recorded after the admitted
        questioning of PW.3 on 28.2.1996, it is submitted.
         130.  It is also  submitted  to  substantiate  this
        point, that Accused No.28, George Cherian was implicated as
        an accused  only  by  Ext.P157 report dated 21.3.1996.  His
        name appears in the "admitted statement"  dated  27.2.1996.
        Allegedly  based  on  the  `admitted  statement', a list of
        accused was submitted to the  court  on  11.3.1996  as  per
        Ext.P166 report.  But that report does not contain the name
        of Accused   No.28  George  Cherian.    Had  the  `admitted
        statement' been in the case records, necessarily, there was
        no reason for not including the name of  Accused  No.28  in
        Ext.P166 report  dated  11.3.1996.   Absence of the name of
        Accused No.28 in the list of eighteen accused mentioned  in
        Ext.P166  shows  that  the  victim  had  not  disclosed his
        complicity on that date.   There  is  yet  another  report,
        Ext.P121 dated 18.3.1996 adding 8 more accused.  There also
        his name  was  not included.  Such non inclusion of Accused
        No.28 at that time is more probable on  the  basis  of  the
        contents  of  Ext.C2  and the `disowned statement', both of
        which did not refer at all  about  the  complicity  of  A28
        George Cherian.    So,  the  non-inclusion  of  the name of
        Accused 28 in Ext.P166  report  or  in  the  latter  report
        Ext.P121   dated   18.3.1996  suggests  that  the  admitted
        statement was not  available  in  the  case  records  until
        18.3.1996, the counsel contends.
         131.   It  is  further submitted that the statement
        admittedly  recorded  by  PW.93  from  PW.3  on   10.3.1996
        (undated) shows that she had spoken to him as follows:

         "           
               
              
                  ."
         (The  ASI  and  CI  of  Munnar station had taken my
                statement.   What  I  have   stated   therein   are
                correct).

        This  has been duly confronted to PW.3 and marked as Ext.D2
        in the second case and  PW.93  had  admitted  that  he  had
        recorded the  said statement, as spoken to by PW.3.  If she
        had to say that she had given a statement to ASI and CI  of
        Munnar  Station,  there must have been a statement taken by
        the C.I.  of Munnar Station, who is none other than  PW.95.
        The  only  statement of PW.3 recorded by PW.95 available in
        the case diary is the  `disowned  statement'.    Therefore,
        that  also  probabilises  the  existence  of  the `disowned
        statement', it is submitted.   It  was  unlikely  that  the
        Munnar  CI  referred  to  in  Ext.D2 could be PW.93 who was
        himself recording that  statement.    That  explanation  is
        improbable, artificial and unworthy of acceptance.
         132.   It is further submitted that the prosecution
        is now introducing a statement dated 8.3.1996  said  to  be
        taken by PW.93 from PW.3 which reveals as follows:

         "      
              
              
              
              ."
              (I have not
                given a statement as now read over to me to the CI,
                Munnar.   CI  Munnar  had  never taken any detailed
                statement from me, nor  had  he  questioned  me  in
                detail).

        This  statement,  admittedly taken by PW.93, from PW.3 does
        not reveal anything more.    Necessarily,  any  inquisitive
        investigating  officer, with an urge to find out the truth,
        should have  questioned  her  further  then  and  there  to
        ascertain  what  were the details that she had (or had not)
        spoken  to  PW.95,  Circle  Inspector,  Munnar,   when   he
        questioned her.    This  aspect  is  not  seen  pursued  on
        8.3.1996 or at any time thereafter by PW.93 or any  of  the
        later three   investigating   officers.    That  is  indeed
        strange.  If such a statement was really recorded, it  must
        have  occurred  to  PW.93  that  his  predecessor PW.95 was
        guilty of gross indiscretion.    No  investigating  officer
        worth  his  salt  would  have  left  matters  there without
        subjecting PW.3 to closer  questioning  to  ascertain  what
        portion  of  the  disowned statement was true and what not.
        In this  regard,  our  attention  is  drawn  to  the  three
        statements  produced  by  the  prosecution  as of 8.3.1996,
        10.3.1996 and 15.3.1996 and pointed out that the  statement
        recorded  on  8.3.1996  contains the date, that recorded on
        10.3.1996 does not contain any date, whereas that  recorded
        on 15.3.1996  is  given  a  date.  It is submitted that the
        statement now produced as of 8.3.1996 is one prepared later
        and  ante  dated  8.3.1996  to  cover  up   the   `disowned
        statement'.  This is evident from Ext.X 13 dated 14.3.1996,
        which  does  not  refer to the statement taken on 8.3.1996.
        To quench our curiosity, we requested the Public Prosecutor
        to show us any entry  made  by  any  Investigating  Officer
        after  PW.95 handed over investigation to indicate that the
        subsequent   Investigators   had   perceived    any    such
        indiscretion on the part of PW.95.  In fact, the subsequent
        report  marked as Ext.X 13 prepared by PW.91 would indicate
        that   the   subsequent   Investigating   Officers/superior
        officers had no grievance that PW.95 had committed any such
        indiscretion except a casual statement made by PW.97 at the
        time  of filing the charge sheet that action may have to be
        contemplated  against  PW.95  after  completion  of  trial.
        There is no contemporaneous entry which would indicate that
        PW.93  or  subsequent  Investigating Officers had expressed
        reservations about the investigation  conducted  by  PW.95.
        No  such  contemporaneous  record  is available in the case
        diary until PW.97 chose to submit his final report.
         133.  In answer to these  contentions,  the  Public
        Prosecutor  submits  that PW.82 had categorically disclosed
        in the court below that so long as he was in charge of  the
        investigation,  until  the afternoon of 27.2.1996, PW.3 had
        been questioned by him once only and he himself  had  taken
        down the admitted statement in his own handwriting, without
        the aid  of  any  scribe.  Therefore, there was no occasion
        for DW.10 to record a statement from PW.3 upon  questioning
        by him.    This  evidence of PW.82 is sufficient to discard
        Ext.C2, the prosecutor submits.    Our  attention  is  also
        invited to  the evidence given by PW.95.  When he commenced
        investigation,  he  had  never  seen  Ext.C2  in  the  case
        records.   It  is  also  submitted by the Public Prosecutor
        that there was no occasion for DW.10 to write  down  Ext.C2
        because,  even  according to DW.10, he had been deputed for
        the investigation of Crime  No.34/96,  as  is  revealed  by
        Ext.X 10  case  diary  relating  to  that case.  There is a
        report, Ext.P102 by DW.10 revealing the investigative steps
        that he had taken in  connection  with  Ext.X  10  case  at
        Kumali,  Kambam  and Theni, which lie far away from Munnar.
        Therefore, based on the contents of that  report  given  by
        DW.10 to PW.95, there was no occasion for him to be present
        in Munnar Police Station earlier than 5 P.M.  on 27.2.1996.
        The report Ext.P119 detailing the counts of offences, based
        on  the  information  revealed by PW.3 to PW.82 had reached
        the magistrate  on  27.2.1996  itself.     Therefore,   the
        statement  given  by  PW.3  to  PW.82  could  not have been
        transcribed by DW.10.
         134.   It  is  further  submitted  by  the  Special
        Prosecutor that the evidence of DW.1 that he had obtained a
        copy  from  the  police station at Devicolam also cannot be
        believed.  According to that witness,  he  had  obtained  a
        photo  copy of Ext.C2 on a Maundy Thursday which was really
        on 4.4.1996.  By that date, the case diary had already been
        transferred to PW.91.  So, there was no occasion  for  DW.1
        to  get  copy  of Ext.C2 from the Devicolam Police Station.
        Therefore, what he had stated before the court below cannot
        be believed.
         135.  The Public  Prosecutor  also  submitted  that
        reference  in  Ext.D  14  bail  order about the case of the
        prosecution is not with reference to what  the  victim  had
        spoken to the investigating officers, but with reference to
        the   notes   of   investigating   officers  based  on  the
        information collected from the  accused  persons  as  well.
        That  was why Ext.D14 order refers to a cash transaction of
        Rs.1,600/-.  It does not have any bearing on Ext.C2.
         136.  It is further submitted  that  PW.93  had  to
        cross  check with PW.3 about Sivaji on 10.3.1996 and had to
        obtain a clarification, because on arrest of  Accused  No.4
        on 10.3.1996 at about 10.45 P.M.  at his house, he had said
        about Sivaji.   He referred to Accused No.10 as Sivaji.  It
        is to clarify that position that PW.3 was questioned on the
        mid night of 10.3.1996 itself and therefore,  reference  to
        Sivaji  in  the statement dated 10.3.1996 has nothing to do
        with Ext.C2.
         137.  Coming to the  `disowned  statement',  it  is
        submitted   by   the   Public   Prosecutor  that  PW.3  had
        categorically deposed before the court below that PW.95 had
        never recorded  a  statement.    Therefore,  much  veracity
        cannot  be  attributed  to  the  `disowned statement' dated
        28.2.1996, or to the contents therein.    It  is  submitted
        that,  it  was  prepared  only to screen off several of the
        accused.  Even according to PW.95, the  disowned  statement
        had been  recorded  by none other than PW.96.  Based on his
        diary produced in court and Ext.P178 note book of PW.96, it
        is contended that PW.96 was not available in Munnar at  the
        time when PW.3 was questioned by PW.95 and therefore, there
        was no occasion for him to record the disowned statement.
         138.  It is further submitted that the reference to
        Vikasini  in the `disowned statement' was designed by PW.95
        and 96 deliberately to probabilise the contents in  Ext.C2.
        They  prepared  the  disowned  statement  with  a motive to
        substitute the `admitted statement' which they could not do
        as the case diary  had  been  transferred  to  PW.93.    So
        reference  to Vikasini in the disowned statement and Ext.C2
        does not have any bearing at all.
         139.  Referring to the class  mate  of  PW.3  named
        Little  Flower,  the  two  teachers and to the route to the
        house of  PW.18,  a  relative  of  Accused  No.3  Jamal  at
        Elappara,  mentioned  in  the  `disowned  statement', it is
        submitted by the Special Public Prosecutor that  those  are
        included to probabilise that PW.3 was questioned.
         140.   With  reference  to the contention regarding
        non-inclusion of Accused No.28  in  the  array  of  accused
        until  21.3.1996  in Ext.P157 statement, it is submitted by
        the Public Prosecutor  that  it  was  only  an  inadvertent
        mistake.
         141.  So, according to the Public Prosecutor, there
        cannot  be  any  prejudice  at all with reference to Ext.C2
        which had never been recorded from PW.3.  Therefore, it  is
        not a  statement  under  Section 161 Cr.P.C.  The `disowned
        statement' had also never been recorded.  So, these are not
        really part of the case records or  documents,  the  copies
        whereof  have  to be produced in court and furnished to the
        accused.  Necessarily, no prejudice  whatsoever  arises  in
        this case.
         142.   It  is  a  statutory requirement in terms of
        Section 173(5) Cr.P.C.  that all documents  and  statements
        recorded   from  the  witnesses  on  whom  the  prosecution
        proposes to rely, have to  be  produced  in  court.    That
        includes  all  the  statements, if more statements had been
        taken from a particular witness and not any  one  statement
        or the  final  one.    If  the prosecution chooses to place
        reliance on any witness, all  statements  of  that  witness
        recorded under  Section  161  Cr.P.C.  have to be produced,
        whether the prosecution wants to rely on or disown any  one
        of such statements.    Section  207(iii)  Cr.P.C.   further
        enjoins that copies of all such  statements  and  documents
        shall be  furnished to the accused.  These are the mandates
        to ensure a fair trial.
         143.  The concept of fair  trial  entails  familiar
        triangulation  of  interests of the accused, the victim and
        the society.    A  trial  which  is  primarily   aimed   at
        ascertaining truth  has  to  be  fair to all concerned.  As
        held by the Supreme Court in Zahira Habibulla  H.Sheikh  v.
        State of Gujarat {2004 (4) S.C.C.158}.


         "There  can  be  no analytical all comprehensive or
                exhaustive definition of the concept of fair trial,
                and it may  have  to  be  determined  in  seemingly
                infinite  variety  of  actual  situations  with the
                ultimate object in mind,  viz.,  whether  something
                that was done or said either before or at the trial
                deprived  the quality of fairness to a degree where
                a miscarriage of justice has resulted."

        The Apex Court further pointed out:


         "Failure to  accord  fair  hearing  either  to  the
                accused  or  the  prosecution violates even minimum
                standards of due process of law.  It is inherent in
                the  concept  of   due   process   of   law,   that
                condemnation  should  be  rendered  only  after the
                trial in which the hearing is a real one, not  sham
                or a  mere  farce  and  pretence.    Since the fair
                hearing requires an  opportunity  to  preserve  the
                process,  it  may  be  vitiated  and violated by an
                overhasty  stage-managed,  tailored  and   partisan
                trial."


        Denial of fair trial is as much injustice to the accused as
        is to  the  victim and the society.  Thus assurance of fair
        trial is the first imperative of justice.  The  fair  trial
        for  a  criminal  offence  consists  not  only in technical
        observance of the frame and  forms  of  law,  but  also  in
        recognition  and  just  application  of  its  principles in
        substance, to find out truth  and  prevent  miscarriage  of
        justice.  As pointed out by the Apex Court:


         "It is as much the duty of the Prosecutor as of the
                Court  to  ensure  that full and material facts are
                brought on  record  so  that  there  might  not  be
                miscarriage of justice."

        Therefore,  it  need not be stated in the background of the
        statutory provisions, that non-production or non-furnishing
        of the relevant documents or the statements will result  in
        prejudice so far as the accused is concerned.
         144.   It  is  now  trite  law  in the light of the
        decision in Pulukuri Kottaya and others v.    Emperor  {AIR
        (34)  1947  PC  67}  that  the non-furnishing of the copies
        shall  result  in  irresistible  conclusion  of  prejudice.
        Therefore, it need not further be enquired into whether non
        furnishing  of  a  relevant  document or statement recorded
        will result in prejudice.
         145.  But, when more statements are recorded from a
        particular witness and few  of  such  statements  had  been
        given  to  the accused, it must be shown what is the extent
        of prejudice caused to the accused in  not  furnishing  the
        copies of   one  or  few  of  such  statements.    In  such
        circumstances, prejudice cannot be  assumed  to  hold  that
        trial was  totally  unfair.   The extent of prejudice shall
        have to be examined by the court.  In the decision reported
        in Rugmini v.  State of Kerala {1986 KLT 1356}, it has been
        held, though in yet another context that:

         "The question whether such irregularities,  if  any
                would lead to miscarriage of justice is a matter to
                be  decided  during  trial  and  in  the  light  of
                evidence."

        The Supreme Court has also held in the decision reported in
        Sunitha Devi v.  State of Bihar and another (AIR  2004  SCW
        7116), examining the case law on the subject that:

         "the court has to give a definite finding about the
                prejudice or otherwise".

         146.  In this case, the court below had come to the
        conclusion that Ext.C2 had never been recorded.  Therefore,
        there  was  no  prejudice  in not furnishing the said copy.
        But that finding has to be  again  tested  in  this  appeal
        based on the contentions and the law as aforesaid.  We have
        to  come  to  a  definite  finding  as  to  which among the
        statements - `admitted  statement'  or  Ext.C2  was  really
        recorded on 27-2-1996.
         147.  The contention centered around Ext.P157 dated
        27-2-1996 is a weighty contention.  It is the admitted case
        of  the  prosecution  that Accused No.28 George Cherian had
        been included among accused only  on  21-3-1996.    If  the
        admitted   statement  had  been  on  record  on  27-2-1996,
        normally, he should have been included when the first  list
        of  accused  was furnished to the court on 11-3-1996 as per
        Ext.P166 report.   If  there  were  any  omissions  due  to
        oversight  in  including  his  name,  his  name could have,
        necessarily,  been  included  in  Ext.P121   report   dated
        18-3-1996,  because  that  report  was filed by yet another
        investigating officer who could, after examining  the  case
        diary  detect  that  omission  based on the contents in the
        `admitted statement'.  That Accused No.28 was included only
        on 21-3-1996 shows that there was no  material  until  that
        date  divulged  by PW.3 regarding the complicity of Accused
        No.28.  The admitted  statement  cannot  be  in  existence,
        therefore, until  21-3-1996.    This convincingly shows the
        probability of the existence of not only Ext.C2,  but  also
        the  `disowned  statement'  stated to be recorded by PW.95.
        Both these statements do not refer to any criminal act said
        to be committed by Accused No.28, though his name has  been
        specifically referred to by PW.3.  Further those statements
        exonerate  Accused  No.28  from  any  complicity and he was
        styled as a person  who  prompted  and  persuaded  PW.3  to
        escape from  the  clutches  of  Accused No.4.  Necessarily,
        PWs.82, 93, 95, and PW.85 Dy.S.P.   Jose  who  investigated
        the case, successively could not have omitted to notice the
        alleged  omission  of  each of their previous investigating
        officers in not including Accused No.28  in  the  array  of
        accused.  It  was  not  an omission at all.  It was only on
        21.3.1996 he  was  included.    Necessarily,  it  is   thus
        probable that Ext.C2 was in existence all the while and not
        the `admitted statement'.
         148.  As regards the evidence given by DW.1, in the
        second  case  it  has  to be borne in mind that the defence
        need not conclusively, disclose the  source  from  which  a
        photo copy  of Ext.C2 had been obtained by DW.1.  It may be
        a practice that deserves condemnation.  As far as  DW.1  is
        concerned,  he could manage a copy because of the defect in
        the police machinery in the State, perhaps.   Anyhow,  when
        viewed  in  the angle of defence, necessarily, it cannot be
        omitted to be reckoned though  obtained  not  through  fair
        means.
         149.   Both  sides  agree  that  Ext.D14 bail order
        refers to payment of Rs.1,600/-, when Dharmarajan sent PW.3
        home on 26.2.1996.  That version given by PW.3 is available
        only in Ext.C2.  When  the  court,  while  passing  Ext.D14
        order,  referred  to some facts as the prosecution case and
        when admittedly the case diary had been passed  on  to  the
        court  for  reference  and  when it is discernible from the
        order that the case diary had been perused  by  the  court,
        the  prosecution  case  recited  in  para 4 of Ext.D14 must
        necessarily be as stated by the victim as then disclosed by
        the case diary.  Therefore, the reference to these  aspects
        in Ext.D14  probabilises  the  existence  of Ext.C2.  It is
        very difficult to swallow  the  contention  of  the  Public
        Prosecutor  that  the court in Ext.D14 had referred to such
        particulars from  out  of  the  statement  of  the  accused
        Dharmarajan  or  from  the  notings  of  the  investigating
        officer based on the disclosure made by Dharmarajan.   This
        circumstance also probabilises the existence of Ext.C2.
         150.   Of  course,  the  Public  Prosecutor is well
        justified in submitting that  much  veracity  need  not  be
        attributed  to Ext.X2 crime ledger which had been prepared,
        kept and maintained at the  office  of  PW.95,  the  Circle
        Inspector.
         151.   But  the  explanation  given  by  the Public
        Prosecutor with  regard  to  the  reference  to  Sivaji  in
        Ext.D2(b) in the second case is most unconvincing.  We have
        extracted supra the real words of the victim as recorded by
        PW.93  that what she had stated to the police was Stephenji
        and that she had never said to the police as Sivaji.   From
        the  tenor  of  the statement dated 10.3.1996, we find that
        Ext.D2(b) therein was with reference to  her  own  previous
        statement referring to Sivaji.  It cannot be with reference
        to  a  statement  said  to  be  given  by  Accused  No.4 as
        suggested by the  Public  Prosecutor.    Accused  No.4  was
        arrested at  about  10.45 P.M.  on 10.3.1996 from his house
        at Kottayam.  Even admittedly, as submitted before us,  his
        statement was  not  recorded on 10.3.1996.  It was recorded
        only on the next day.  So, there arises  no  situation  for
        obtaining   any   clarification  on  Sivaji  from  PW.3  on
        10.3.1996.  Therefore, the reference to Sivaji appearing in
        Ext.D2(b) in the second case could  not  be  based  on  the
        statement  given  by  Accused  No.4;  but  can only be with
        reference to the statement given  by  PW.3  herself  on  an
        earlier occasion.  The only such statement is Ext.C2.  This
        also convincingly probabilises the existence of Ext.C2.
         152.  There  is  yet  another aspect as well.  Even
        going by the prosecution case, Stephenji is a close  friend
        of  Accused  No.4  Reji,  who  had,  while at Kuravilangad,
        telephoned  to  Stephenji  to  come  there   to   have   an
        intercourse with PW.3.  Such an invitation can only be to a
        close friend  in  the  normal circumstance.  Mistake in the
        name of such a close friend as Sivaji instead of  Stephenji
        by  Accused  No.4 is certainly incompatible to commonsense.
        Therefore, on that reason also the contention  advanced  by
        the   Public   Prosecutor   cannot   be   accepted,   again
        probabilising the existence of Ext.C2.
         153.  Though, not of much importance, the  admitted
        version  of PW.3, when examined in the second case as PW.1,
        is that she had visited the park on 17.1.1996 at Ernakulam.
        This also appears in Ext.C2.  This is also in tune with the
        check out time from Metro Lodge at Kottayam on the  morning
        of  17.1.1996  {Ext.P-57(a)}  and the checking in, in Anand
        Lodge at Ernakulam at about 6.45 P.M.  {Ext.P-58(a)} on the
        same day.  Necessarily, PW.3 and Dharmajan would have spent
        this long time during day light somewhere together.    This
        also probabilises the existence of Ext.C2.
         154.   Further,  reference  to  Little  Flower, the
        class mate, two teachers of PW.3 and the route  to  certain
        places  where  she  had  been  taken  and  other  minor and
        intricate details in  Ext.C2  also  probabilise  that  such
        information  could  have  been  divulged to the one who had
        recorded  it  only  by  PW.3,  as  such  details  were  not
        available at  that  time  from  anywhere  else.   This also
        probabilises the existence of Ext.C2.
         155.  Further, the name of the  film  mentioned  in
        Ext.C2  has  also  resemblance  to the Hindi film `Gambler'
        shown on 17.1.1996 in one of the theatres at  Ernakulam  as
        disclosed  by  the  news  paper  attempted to be brought in
        evidence by  Dharmarajan,  as  mentioned  above.    As  per
        Ext.C2, PW.3 has seen the film with Dharmarajan after their
        check in  at Anand Lodge at about 6.45 P.M.  Gambler is the
        only Hindi cinema exhibited  at  that  time  in  Ernakulam,
        going by  the  said  news  paper.  This could not have been
        known to the policemen in Munnar  on  27.2.1996  except  as
        told by  PW.3.    This  also  probabilises the existence of
        Ext.C2.
         156.   It  is  admitted  by  PW.3  that  PW.95  had
        questioned her   on   28.2.1996.      PW.95   started   the
        investigation of the case only on that day.  As admitted by
        PW.3 she reached the police station at about 11 A.M.    and
        at about 1 P.M.  she had been taken from the police station
        to PW.73 doctor for detailed examination.  Necessarily, she
        was available  in  the  station  for two hours.  So, in all
        probabilities, PW.95 who took up investigation of the  case
        on  that  day  would  have  questioned her for ascertaining
        details and recorded such details.    He  would  have  thus
        prepared  a statement with the details he had gathered from
        PW.3 with regard to the commission of the  offence.    Even
        though  PW.96 who had transcribed the statement recorded by
        PW.95 was deputed for investigation of Crime 34/96,  {Ext.X
        10  (e)  in  the  second  case}, at Kumali on 27th and 28th
        February, 1996, it cannot be stated that he would not  have
        been  available  on  28th,  to  transcribe  that statement.
        Ext.P178 note book shows that  he  was  available  on  28th
        night in  Munnar  police station.  The entries in such note
        book need not be taken as gospel truth  with  every  minute
        details therein.    As  he  had  been  present on that day,
        necessarily, whatever  information  gathered  by  PW.95  on
        questioning PW.3 could have been transcribed by PW.96.  So,
        the disowned statement cannot be brushed aside and it being
        one recorded  under  Section  161 Cr.P.C.  by PW.95, a copy
        thereof must be produced before the court and furnished  to
        the accused, as insisted by the Code.
         157.    When  such  statement  is  thus  available,
        reference therein to Vikasini, has much force to relate  it
        to Ext.C2.  This Vikasini is none other than Accused No.39,
        who is named, as now disclosed, as "Vilasini".  Vikasini is
        an uncommon   name   in  Kerala.    Necessarily,  the  name
        appearing as Vikasini in the `disowned statement' must have
        crept in there, because of the reference to  that  name  in
        Ext.C2  thereby again probabilising the existence of Ext.C2
        apart from the `disowned statement'.
         158.  The existence of the  disowned  statement  is
        also probabilised by reason of the reference to a statement
        given  by  PW.3  to Munnar Circle Inspector as contained in
        her another statement dated 10.3.1996 (Ext.D2 in the second
        case) recorded by PW.93.  It is again probabilised  by  the
        statement  dated 8.3.1996 in which PW.3 refers that she had
        not given a statement to PW.95 as had  been  read  over  to
        her.   In  such  circumstances, as already mentioned above,
        the officer who recorded  that  statement,  ought  to  have
        ascertained  from  her as to what had been really spoken by
        her  to  PW.95,  because  as  admitted  by  her  PW.95  had
        questioned her.    It  is  the  duty  of  the investigating
        officer like PW.93 when he had his fingers on the `disowned
        statement' to put each of the statements contained  therein
        to   PW.3  to  ascertain  the  veracity  of  each  of  such
        statement.  As it  has  not  been  done  so  by  PW.93  who
        recorded  the  statement dated 8.3.1996, the probability is
        that PW.95 would have recorded  the  statement  from  PW.3.
        These  details  are  sufficient  enough to probabilises the
        existence of the `disowned statement'.
         159.  In the light of the controversy  with  regard
        to  the two statements dated 27.2.1996, we had, taking much
        pain, compared both the statements as transcribed.   Though
        the contents are almost same, no allegation of rape against
        Dharmarajan had  been  revealed by PW.3 in Ext.C2.  She has
        also not attributed any absence of consent specifically  to
        any of  the  present  alleged  rapes.  We have also noticed
        that  something  more  is  added  with  reference  to   the
        complicity   of   Dharmarajan   and   with  regard  to  the
        ingredients of  rape  in  the  `admitted  statement'  dated
        27.2.1996   as  an  improvement  to  Ext.C2,  the  disputed
        statement.  A close examination of  both  these  statements
        discloses,   from  the  striking  off  and  corrections  at
        different places in the `admitted statement', that  it  had
        been attempted  to be copied and improved from Ext.C2.  The
        contention of the Public Prosecutor that PW.95 designed the
        `disowned statement' to probabilise the existence of Ext.C2
        which he, along with PW.96, wanted to substitute  later  in
        place of the `admitted statement' is too far fetched and is
        supported with no evidence or probabilities.
         160.    Thus,   these   are   the   situations  and
        circumstances which probabilises that the  first  statement
        given  by  PW.3  to  any  of  the investigating officer was
        Ext.C2 and  not  the  `admitted  statement'  and  that  the
        `disowned  statement'  is  the  one  recorded  by  PW.95 on
        questioning PW.3 on 28.2.1996.
         161.   The  accused  in  that  regard  had  on  all
        probabilities  discharged  their  burden to show that there
        had been a  first  statement  earlier  than  the  `admitted
        statement'.   It  has  been  withheld  not  only  from  the
        accused, but from the court as well.  When  that  statement
        did not reveal the offence of rape so far as Dharmarajan is
        concerned  and it did not spell out absence of consent from
        PW.3 in respect of some of the alleged rapes,  necessarily,
        all  the  accused  could  have made use of it to contradict
        PW.3, moulding  their  defence  on  that  aspect  from  the
        beginning of  the  trial  itself.  Non furnishing of Ext.C2
        amounts to denial of a  fair  opportunity  to  mould  their
        defence.   Equally  so is the non production/non furnishing
        of the `disowned statement' which is  really  found  to  be
        recorded on  questioning  PW.3  by PW.95.  This necessarily
        results in prejudice.
         162.  This controversy could not have occurred,  if
        the  police  had  adopted  a  fair and reasonable method as
        prescribed in the Code in the matter of registration of the
        crime.   As  already  mentioned   by   us,   Ext.P1   first
        information  statement nor Ext.P1(a) FIR reveals commission
        of any cognizable offence for the police  to  proceed  with
        the investigation.  The statement given by PW.1 - father of
        PW.3, is  that  she  had gone out of the house.  He did not
        have a suspicion  even  that  she  had  been  kidnapped  or
        abducted.   What  PW.1  had revealed to PW.82, while giving
        the first information was that

         "     
              ."
           (I do not  know  why  she  had  run
                away).

        This  does  not  reveal  any  commission  or  suspicion  of
        commission of a cognizable offence to attract  Section  154
        Cr.P.C.   which obliges a police officer to obtain a signed
        statement and to record it in the FIR book.  Merely because
        certain instructions contained in the Police Manual  oblige
        the  Station  House Officer to record a man missing case in
        the FIR book, it will not make it an F.I.  Statement  under
        Section  154  to proceed with the investigation in terms of
        Section 156 Cr.P.C.  An offence has been revealed  only  by
        the   statement  given  by  PW.3  to  PW.82  on  27.2.1996.
        Necessarily, going by the statutory provisions,  that  must
        be   taken   as  the  revealing  of  information  regarding
        commission of a cognizable offence to be entered in the FIR
        book to proceed with the investigation.   In  this  regard,
        the  law  has  been  made  explicitly clear by the decision
        reported in Mani Mohan Ghose v.  Emperor [AIR 1931 Calcutta
        745}.  It was held as follows:


         "The conditions as to writing in S.154 of the  Code
                are merely procedural.  If there is an "information
                relating to the commission of a cognizable offence"
                it  falls  under  S.154  and  becomes admissible in
                evidence as such, even though  the  police  officer
                may  have neglected to record it in accordance with
                law.  Owing to this neglect  in  particular  cases,
                the  Courts  have  laid down from time to time that
                the information which starts the  investigation  is
                the  real  first information under S.154 and should
                be treated in evidence as such.  It does not depend
                on the sweet will of the police officer, who may or
                may not have recorded it.  But the condition as  to
                the character of the statements is really two fold:
                first  it  must  be an information and secondly, it
                must relate to a cognizable offence on the face  of
                it  and  not  merely  in  the  light  of subsequent
                events."

        It was therefore incumbent even in  man  missing  cases  to
        register  an  FIR  under  Section  154, when the offence is
        first revealed subsequently.  In State of Assam v.  Upendra
        Nath, Rajkhowa {1975 Crl.L.J.  354}, it was held that:


         "An  information  to  have  the  status  of   first
                information   report   under  Sec.154  must  be  an
                information  relating  to  the  commission   of   a
                cognizable  offence  and  it  must not be vague but
                definite enough  to  enable  the  police  to  start
                investigation."

        It has  also  been  held  in Arun Kumar v.  State {AIR 1962
        Calcutta 504} that :


         "A first information report has to  answer  certain
                tests,  namely  that it must relate to a cognizable
                offence.  A report that some body is missing is not
                an information relating  to  the  commission  of  a
                cognizable offence under Section 154 of the Code of
                Criminal Procedure."

         163.   So,  had  the  information  given by PW.3 on
        27.2.1996, been registered as FIR,  necessarily,  it  would
        have reached the court immediately and there would not have
        been  any  controversy  as  to  which of the two statements
        dated 27.2.1996 really forms the first statement  given  by
        PW.3.   Certainly,  as  submitted by the Public Prosecutor,
        the police adopted the prevailing practice  of  registering
        man  missing cases in FIR form and further statements being
        taken under Section 161 Cr.P.C.
         164.  In such circumstances, we make it clear  that
        it will be advantageous to the police and the machinery for
        administration  of criminal justice to follow the procedure
        in terms of the Code strictly in future.  However,  as  the
        police  has,  in  this case, only adopted the practice that
        was being followed till then, the non registration  of  the
        statement  dated 27.2.1996 given by PW.3 as an FIR will not
        result in vitiation of the investigation nor the trial.
         165.  But, at the same time, when the existence  of
        Ext.C2  is  probabilised and when Ext.C2 did not attach any
        complicity on Dharmarajan  and  even  does  not  spell  out
        absence of consent, necessarily, the non-production and non
        furnishing  of the copy thereof will result in prejudice so
        far as the allegations of rape and gang rape are concerned.
         166.  We have already come to the  conclusion  that
        the  allegations  of  the offences punishable under Section
        376(1) and  376(2)(g)  have  not  been  established  beyond
        doubt.  Apart from that, the accused are also prejudiced in
        that context because of non furnishing of copies of Ext.C2.
         167.   So far as the accused other than Dharmarajan
        are concerned, they had not been provided with  the  copies
        of  Ext.C2,  the `disowned statement', the statements dated
        8.2.1996, 10.3.1996 and 15.3.1996 until the  completion  of
        the cross-examination of PW.3.  We have already adverted to
        the  importance and significance of those statements in the
        search for truth in this case.  The accused had to  file  a
        petition  seeking copies thereof which had been objected to
        by the prosecution.  Ext.D37 marked in the second  case  is
        that  objection  wherein  the  existence of Ext.C2 has been
        disputed.  All the other four statements had been  produced
        in the court at that stage.  It is submitted by the counsel
        for  the  accused  that  the  belated  production  of those
        statements will not satisfy the requirement of law.   Apart
        from  that,  copies of such statements must be furnished to
        the accused.  They have not received it.  It  is  submitted
        by  the  Public  Prosecutor  that  a memo was filed showing
        service of copies.   Had  it  been  so,  necessarily,  that
        aspect ought to have been referred to in Ext.D37, objection
        filed by  the  prosecutor.  Though it is submitted that the
        copies of the statements have been  furnished  subsequently
        and  memo  had been filed showing service of copies, we are
        not able to place our fingers on such a memo to come to the
        conclusion that there was furnishing  of  such  statements.
        The  judgment  does  not  show specifically that the copies
        were furnished.  Even if those copies  had  been  furnished
        later  at  the  fag  end  of trial, after completion of the
        cross-examination of PW.3, for days together, it  will  not
        serve  any purpose to cure the damage that the accused have
        already suffered because of absence of those  documents  at
        the time  of  her examination.  Thus prejudice had resulted
        therefrom at the time of cross-examination of PW.3.    They
        have also moulded their defence based on the then available
        details only.    They  were disabled to mould their defence
        effectively after receiving the copies  in  time.    So  it
        caused  prejudice to the accused in the first case totally.
        The details including the arraying of Accused No.28 and the
        reference to Sivaji that we have examined  earlier  are  of
        much  importance  for  the  other  accused  to  mould their
        defence  with  reference  to  the  said  statements   which
        contained very important details which could have been made
        use  of  by  them  for  moulding  their  defence  strategy.
        Therefore, belated production cannot  cure  the  defect  of
        prejudice  arising  out  of  non production in time and non
        furnishing of copies  in  time,  even  assuming  that  such
        copies were furnished after Ext.D37.
         168.   It  is true, as contended by the counsel and
        as  discussed  above,  departure  from  the  mandatory  and
        protective statutory  procedure  will cause prejudice.  But
        the court has to examine whether that prejudice will affect
        the case in its entirety or not, as  held  by  the  Supreme
        Court in  Sunitha Devi v.  State of Bihar and another {2004
        AIR SCW 7116}.  So, we have to  examine  whether  such  non
        production/non furnishing disabled Dharmarajan from meeting
        the  charges  under Sections 366 A and 372 IPC, that he had
        been called upon to meet.
         169.  In that regard, we have to make it clear that
        the departure from the statutory provisions  now  disclosed
        with  regard  to  the  non  furnishing  of Ext.C2 is not so
        violent as to strike at the root of the trial in respect of
        the said two offences.  If the procedure  adopted  was  one
        which  the Code positively prohibited, it was possible that
        the procedure  had  worked  out  actual  injustice  to  the
        accused.  Violation must be so obvious that they will speak
        for  themselves  as,  for  example,  a  refusal to give the
        accused a  hearing,  a  refusal  to  allow  him  to  defend
        himself,  a  refusal to explain the nature of the charge to
        him and so forth, so that  prejudice  shall  be  so  patent
        through out and the procedure adopted shall be so abhorrent
        to  well  established  notions  of natural justice that the
        trial is reduced to mockery and does  not  conform  to  the
        norms envisaged by law.  So, in the complete absence of any
        substantial   injustice  or  in  the  complete  absence  of
        anything that outrages what is due to  natural  justice  in
        criminal cases, it cannot be said that non-supply of Ext.C2
        goes  to  the  root  of  the  trial  vitiating  it totally.
        Because  the  real  question  is  whether  disregard  of  a
        particular  provision  amounts  to  substantial denial of a
        just and  fair  trial  as  contemplated  by  the  Code  and
        understood   by   the   comprehensive  expression  "Natural
        Justice".
         170.  Even if the non furnishing of Ext.C2 resulted
        in prejudice, so far as Dharmarajan is  concerned,  it  can
        result  in  prejudice  only  with  reference to the details
        contained therein vis-a-vis the allegation  of  conspiracy,
        kidnapping, rape  and  gang  rape.  That prejudice will not
        percolate into other allegations.   He  has  even  admitted
        taking the  girl  from  place  to place.  During such time,
        several others had illicit intercourse with her.  The other
        statements recorded by the other investigating officers, on
        closer scrutiny of the details revealed during  the  course
        of the  investigation, were given to him.  It contained the
        particulars for meeting the allegation of the offences made
        punishable under Section 366 A and 372 IPC.  Furnishing  of
        Ext.C2  would  not  have  placed him in any better position
        substantially in the defence of those charges.
         171.  Thus, in this case, as the  other  statements
        containing  details  regarding  those  allegations had been
        furnished, it cannot be said that in the matter of trial of
        the said offences, there had been any prejudice so  far  as
        Dharmarajan  is  concerned, much less substantial prejudice
        or miscarriage of justice.
         172.  Going by the evidence  of  PW.3  and  by  the
        admitted   case  of  Dharmarajan,  it  is  conclusive  that
        Dharmarajan had taken PW.3 from place to place  and  during
        that journey, it is clear that, she was subjected to sexual
        intercourse by  others.  That sexual intercourse is illicit
        intercourse as she was a minor at that time,  and  she  was
        not related  to  any  one  by  marriage.  Even according to
        Dharmarajan, he did not have any relation with  that  girl.
        If  as  admitted  by  Dharmarajan the girl had followed him
        from  Ernakulam  to  different  places  mentioned  in   his
        statement under Section 313 Cr.P.C., necessarily, it was on
        inducement by  Dharmarajan.    Dharmarajan has thus induced
        PW.3 who was admittedly under the age of  18  years  to  go
        from  place  to place and she had been subjected to illicit
        intercourse during   that   period.      The   irresistible
        conclusion, therefore, is that he has committed the offence
        punishable under Section 366 A IPC.
         173.   It  is also clear from the same evidence and
        the stand taken by Dharmarajan in his Section 313 statement
        that he had disposed of PW.3 while she had been taken  from
        place  to  place,  to  several  other  persons  for immoral
        purpose.  It is clear from the evidence of  PW.3  that  she
        had been subjected to illicit intercourse by several of the
        accused   in   the   first  case  during  the  period  when
        Dharmarajan had admittedly taken her from  place  to  place
        and at other places as spoken to by PW.3.  Of course, there
        is  no specific evidence of collection of money to find him
        guilty of selling of the girl or letting her for hire.
         174.  PW.95, when he questioned PW.3  and  recorded
        the  `disowned  statement', had thought of collecting proof
        from the details he had gathered and recorded therein.   At
        that  stage,  it  would  appear  that  the  attempt  was to
        concentrate on this aspect of inducing the  minor  girl  to
        illicit intercourse.    But that idea had not been properly
        conceived by other investigating  officers  to  proceed  in
        that  line,  in  which  case,  the 1st or 2nd degree of the
        offence under Sections 372 and 373 IPC would  be  revealed.
        Anyhow,  it  has  been  conclusively  proved  based  on the
        evidence on record that PW.3 had been at least disposed  of
        to  others  by  Dharmarajan  for illicit intercourse or for
        unlawful  and  immoral  purposes  thereby  committing   the
        offence punishable under Section 372 IPC also.
         175.   Under  those  two  counts, he had been found
        guilty, by the court below.  But no separate  sentence  has
        been  ordered  as the maximum sentence of life imprisonment
        for the offence punishable under  Section  376  (2)(g)  was
        imposed, which  we  have now vacated.  As we have confirmed
        the conviction under the said two  provisions,  so  far  as
        Dharmarajan  is concerned, we have also to pass an order of
        sentence on those counts.
         176.  We are  also  conscious  of  the  contentions
        urged  by  the  Public Prosecutor that going by Charge I in
        the first case as conspiracy for commission of the  offence
        including  that  for  wrongful  confinement,  rape and gang
        rape, at difference place has been made against  the  other
        accused  as  well,  they  must  also be found guilty of the
        offence under Sections 366  A  and  372  IPC.    There  was
        specific allegation of conspiracy for wrongful confinement,
        for  rape  and  for  gang  rape  and also the allegation of
        substantive offence under Sections 372 and 373 IPC, so  far
        as the accused in the first case are concerned.  But all of
        them  had  been  found not guilty and were acquitted of the
        offences under  Sections  372  and  373  IPC.     In   such
        circumstances,  they cannot be found guilty of the offences
        under Sections 372 or 373 in these appeals filed by them.
         177.  The specific  charge  of  the  offence  under
        Section  366  A IPC was made only against the first accused
        and not against others.  It is submitted that  Charge  No.1
        regarding  conspiracy  also  takes  in  the  allegation  of
        conspiracy for commission of the offence under Section  366
        A as  well.    There  is  specific charge of conspiracy for
        wrongful confinement,  rape  and  gang  rape  at  different
        places,  which cannot be done without moving her from place
        to place.  Therefore, they should also be roped within  the
        conviction  under  Section  366  A,  the  Public Prosecutor
        submits.
         178.  The prosecution has  raised  a  charge  under
        Section 120  B  as  charge  No.1.   Only the allegations of
        conspiracy for wrongful confinement, rape and gang rape are
        specifically raised therein.  The allegation of  conspiracy
        for  the offence under Section 366 A IPC can never be spelt
        out from that charge.    Moreover,  there  is  no  evidence
        regarding  the  conspiracy for the purpose of commission of
        offence under Section 366 A or on any  inducement  to  PW.3
        said  to be made by any of the accused in the first case to
        move her from place to place for  the  purpose  of  illicit
        intercourse by  any  one  of  them.  In the absence of such
        evidence regarding the conspiracy  for  the  offence  under
        Section   366  A  in  this  case,  we  cannot  accept  that
        contention of the Public Prosecutor.   There  was  also  no
        charge  of  the offence under Section 366 A as such against
        any of the accused in the first case, except  accused  No.1
        who  did not have, as admitted by the prosecution, any role
        except for alleged kidnapping which is  found  against  the
        prosecution.   Therefore,  any  of the accused in the first
        case cannot be stated to have committed the  offence  under
        Section 366 A.
         179.   But,  when  Dharmarajan  is  found guilty of
        disposing of a minor  for  unlawful  and  immoral  purpose,
        there  must be another one or more guilty of obtaining that
        girl for unlawful  and  immoral  purpose,  made  punishable
        under Section  373  IPC.    The  offences  punishable under
        Sections 372 and 373 are that relating to sex trade.    The
        accused in the first case were charged with those offences.
        They also  faced  trial on that count.  The court below, in
        the first case, acquitted all  of  them  of  the  said  two
        offences.   Unfortunately,  the  State  did  not  prefer an
        appeal against such acquittal.  Even in the scenario of the
        said accused filing several  appeals  as  mentioned  above,
        assailing  conviction  on other counts, and the pendency of
        such appeals for about four years, the State did  not  seem
        to have taken that aspect seriously.  When thus there is no
        appeal by the State against the acquittal of the accused in
        the  first  case  of  the offences of sex trade, punishable
        under Sections 372 and 373 IPC, we cannot  punish  them  on
        those counts, in the appeals filed by them.
         180.    We  have  now  to  decide  the  quantum  of
        punishment so far  as  Dharmarajan  is  concerned  for  the
        offences punishable  under  Sections 366 A and 372 IPC.  At
        this  juncture,  the  counsel  for  Dharmarajan  Sri.Thomas
        Mathew was heard on the question of sentence.
         181.   It  is submitted by him that the court below
        did not pass any sentence after having found him guilty  of
        the offences  under  Sections  366 A and 372 IPC.  Sentence
        was imposed only for the offence  under  Section  376(2)(g)
        IPC.   Therefore,  unless  there is an appeal under Section
        377 Cr.P.C.   by  the  State  seeking  enhancement  of  the
        sentence  under  Sections 366 A and 372 IPC, this court may
        not pass an order of sentence on Dharmarajan on  those  two
        counts, it  is  urged.   It is further submitted that he is
        now placed in a very difficult situation  having  lost  his
        mother.   He  is  facing divorce proceedings from his wife.
        He has to maintain his aged father and a  child.    He  has
        already  suffered  imprisonment  for  two years and 92 days
        including that  at  the   pre-trial   stage.      In   such
        circumstances, a most lenient view may be taken in his case
        to minimise the sentence, prays the learned counsel.  It is
        also  submitted that, such approach may be adopted when all
        the other accused have been acquitted.
         182.  With regard to the contention raised in terms
        of Section 377 Cr.P.C., we are afraid, we cannot accept it.
        A reading of the impugned judgment will show that there was
        conviction on all the counts including under Sections 366 A
        and 372 IPC; but no separate sentence on those  two  counts
        was imposed, as the court below felt that the imposition of
        the  maximum  sentence  provided for the offence punishable
        under Section 376(2)(g) would be sufficient  the  interests
        of justice.    When  a  person  had thus been ordered to be
        imprisoned for life, the court below felt that no  separate
        term of sentence need be passed for other offences.
         183.   When there was a conviction, the court below
        was obliged to impose a sentence on  each  of  the  several
        counts  of  conviction  and  it  could,  at  the best, have
        directed that the sentences should run concurrently, rather
        than imposing no sentence, in the light of the more  severe
        sentence passed   for   a   graver   offence.      In  such
        circumstances, the State need  not  have  taken  an  appeal
        under Section  377  Cr.P.C.    for enhancement of sentence,
        because there was no sentence at all on those  two  counts.
        On  the other hand, when one is found guilty of an offence,
        he has to  suffer  the  sentence  provided  for,  for  that
        offence.   This  being  not  the  case  of  enhancement  of
        sentence, when his appeal is allowed in part setting  aside
        the  conviction  for  the  offence  on  which  he  had been
        sentenced for a longer term, he shall have to face sentence
        in respect of the convictions which we  are  confirming  in
        this appeal  filed  by  him.  Therefore, we are of the view
        that we must impose sentence under the said two counts.  We
        have such power in terms of clause (b) of Section  386,  if
        not clause (e) thereof.
         184.  Taking into account the nature of the offence
        committed  and  the  plight  of  the  victim,  who had been
        subjected to such offence for about long 40 days,  we  feel
        that no  leniency need be shown to such an accused.  We are
        of the view that taking into account all  circumstances,  a
        sentence  of  rigorous imprisonment for 5 years with a fine
        of Rs.25,000/-, on each of the said two counts of  offences
        shall meet the ends of justice in this case.  In default of
        payment  of  fine  as  aforesaid,  he  shall undergo simple
        imprisonment for one year each on those two counts.
         185.   Accordingly,  we  allow  Crl.A.No.877/02  as
        aforesaid,  setting  aside  the conviction of the appellant
        therein on all the counts except under Sections 366  A  and
        372  IPC and modify the sentence passed on him by the court
        below, as aforesaid, for the said two offences.  We make it
        further clear that fine, if realised, shall be paid to  the
        victim,  PW.1  in  Sessions  Case No.241 of 2001 leading to
        Crl.A.No.877/02.  The substantive sentences of imprisonment
        shall run concurrently.  He will also be  entitled  to  set
        off under  Section 428 Cr.P.C.  The court below shall issue
        non-bailable warrant against him to execute the sentence.
         186.  The remaining criminal appeals  arising  from
        S.C.No.187/99  are  allowed setting aside the conviction of
        the appellants therein and vacating the order  of  sentence
        passed on  them.    Bail bonds executed by them shall stand
        cancelled.
         187.  Now, we  will  have  to  consider  the  three
        Crl.M.Cs.  filed  by PWs.95, 96 and DW.10.  In the light of
        our findings as above, it cannot be said that any  of  them
        has gone  wrong warranting any strictures against them.  We
        have already  set  aside  the  impugned  judgments,  except
        insofar  as  the conviction under Section 366 A and 372 IPC
        so far as Dharmarajan  is  concerned.    Consequently,  the
        strictures   made   against   them   shall  stand  vacated.
        Crl.M.Cs.  therefore succeed.
         188.  We are indebted to the counsel  appearing  in
        these  cases,  including  the special public prosecutor for
        the able assistance rendered to  us  to  dispose  of  these
        appeals and  Crl.M.Cs.    The  arguments have been long and
        meticulous.  We have been taken through  all  the  relevant
        inputs even  minor  ones in detail.  We place on record our
        indebtedness to counsel, in that regard.
         189.  At the same time, we shall express  ourselves
        that  we  had been slightly disturbed by the attitude shown
        by the print and electronic media  during  the  hearing  of
        these appeals.   Two or three days before, there appeared a
        news item in more than one vernacular daily that this court
        had come to the conclusion that the investigation  done  by
        certain  officers  was  not proper, even before the hearing
        was complete.
         190.  Any report appearing in  leading  daily  news
        papers  will  be  read by thousands of people and they will
        carry impressions on its basis.  We are afraid that if  the
        report  comes  on like this, the business of the court will
        be affected.  We  feel  that  those  who  are  making  such
        reports are unmindful of the repercussions of such reports.
        Many of the legal reporters are lawyers who are in the know
        of what  is happening in the court rooms.  Nobody accepts a
        mute judge.  A  mute  Judge  may  not  be  able  to  render
        justice.   A  Judge  may  have  to convey ideas and express
        doubts.  An effective adjudicatory machinery can work  only
        by conveying  ideas.   When the Judges are posing questions
        to one, it will, in certain situations, be couched with the
        contentions to the contra placed before the  court  by  his
        adversary.  Such questions however hard it may be, shall be
        answered  giving the response on that particular contention
        to the court.  If a reporter of a news paper  who  casually
        comes  to the court room and hears such questions then, and
        forms a wrong idea that the court has  formed  an  opinion;
        and  consequently  reports  his  impression  as  the  views
        expressed by the  court,  it  will  not  be  a  responsible
        journalistic  approach  with  an  anchor  on the society in
        general.  It may help in generating sensation, which is  of
        no use.    Misplaced  sensation  can drive even the earnest
        truth seekers away from the right path pursued by them.  Of
        course, the courts will certainly not be  carried  away  by
        such incorrect  reports  or sensation created thereby.  But
        the public at large should not be allowed  to  carry  wrong
        notion on  the  views  of the court.  Therefore, it is high
        time that the  journalists  reporting  the  proceedings  in
        court,  shall  bestow care and responsibility to report the
        proceedings truly and correctly.  The legal reporters  must
        understand  and comprehend the sublime processes that go on
        in courts.   Discussion,  debate,  exchange  of  ideas  and
        attempt  to  meet  one  reason  with  a  better one are the
        foundations of  that  noble  process.    Search  for  truth
        becomes  effective  and purposive only when the adjudicator
        expresses doubts and exchanges ideas.    Queries  from  the
        bench  and  clarifications  sought  must  be understood and
        their impact comprehended by the law reporters.    If  they
        cannot  comprehend  and  perceive  the soul of such sublime
        interactions  in  court,  they  must   desist   from   such
        reporting.
         191.   We  were again disturbed that almost all the
        daily news papers today  have  carried  reports  about  the
        contents  of this judgment, which is not even complete now.
        Our judgment bears the date of  today.    Evil  is  that  a
        report on its contents was published by media yesterday and
        today morning.    It  is true that after hearing almost for
        long two months and bearing all  the  materials  with  much
        clarity in our minds, we thought of delivering our judgment
        with  the  able  assistance  of  the  counsel  and in their
        presence forthwith.  Moreover, it is the duty of the  court
        to  deliver the judgment as quickly as possible so that the
        parties will get the fruit of their appeal right  from  the
        mouth of  the court itself at once.  A pronouncement can be
        called a judgment only when the last word is pronounced and
        a date is given to that pronouncement.  Until then,  it  is
        possible that certain observations or conclusions in one or
        two  segments  already  dictated  earlier  may be modified.
        Moreover, in a Division Bench, it is also possible that the
        opinion expressed by one judge need not always be  accepted
        by the  other  judge,  who may form a different opinion.  A
        judgment of a Division Bench will be conclusive  only  when
        its delivery is complete and the other judge sitting in the
        court  concurs  with the view so expressed by such delivery
        by the other.   Until  then,  it  cannot  be  termed  as  a
        Judgment.   It  is not proper, we feel, for the responsible
        media people to serve half-baked judgment to the public and
        in case any mistake occurred in the dictation is  corrected
        later, it will create again a chaos as to what prompted the
        court  to deviate from the mistaken portion, which has been
        published by the media as the verdict of the court.
         192.  Therefore, it is high time,  to  caution  the
        media,  both  print and electronic, that the proceedings in
        court must be published with much care  and  restraint  and
        only   after  ascertaining  the  truth  and  not  from  any
        truncated or partial version.  The sublimity of  the  court
        process  must  be imbibed by the reporter when he makes the
        report.  No harm will occur in such circumstances,  if  the
        publication is  delayed  by  a  day.    It  will not affect
        anybody's right to information which  means  the  right  to
        receive correct and true information.  Report on a document
        like  the judgment shall be based on its complete contents.
        It cannot be reduced to the type  of  report  on  a  public
        speech or  address.   We hope that the media and the public
        will take this observation in its true spirit.  We  do  not
        in  any  way mean to curb the free press in their activity.
        What is required is only a responsibility with some  amount
        of restraint to deliver the true information to the public,
        so  far  as  the court proceedings, which the people of the
        country consider with high esteem, are concerned and not to
        cause embarrassment to courts.
         193.  It is advisable  that  there  shall  be  some
        guidelines  in  that regard so that one can follow the same
        with clarity and certainly.
         194.  We, therefore, appeal to the Press Council of
        India that they shall  consider  framing  some  regulations
        with  regard  to  the reporting of proceedings in the court
        including the judgment.
         195.  A copy of this judgment shall be sent to  the
        Press Council  of  India.   In the meantime, we are hopeful
        that the media will conceive in true spirit the  sentiments
        expressed  above  and  exercise  restraints and constraints
        wherever necessary in  reporting  the  proceedings  of  the
        court.


            (K.A.ABDUL GAFOOR)
             JUDGE.

        tm/nan/sk/-

         CONCURRING OBSERVATIONS BY JUSTICE R.  BASANT.

         196.   I  have  heard  the  judgment dictated by my
        learned brother immediately after conclusion  of  the  very
        long  arguments  which  have  spread  over  a period of two
        months.  I do wholly concur with the final conclusion  that
        the  appellants  in  all  these appeals are entitled to the
        benefit of doubt in respect of all offences alleged against
        them-except Dharmarajan the principal accused in so far  as
        it  relates  to the offences punishable under sections 366A
        and 372 of the Indian Penal code.  I do  also  concur  with
        the sentence  imposed  on him for the said offences.  But I
        feel  obliged  to  give  expression  to  a  few  disturbing
        thoughts  that are aroused in my mind after considering the
        facts in this case.
         197.  We have attempted on the facts of  this  case
        to  draw the frontier line between consent and mere passive
        resignation and acquiescence.  It is  the  unavoidable  but
        onerous  duty  of  courts  on  the  facts  of  each case to
        identify, ascertain and demarcate that  real,  yet  elusive
        and  difficult,  line between voluntary consent and passive
        acqueiscence, subject of course  to  the  law  relating  to
        burden of  proof  and  benefit  of  doubt.    This  by  any
        standards has not been an easy task in this case.   We  are
        not unmindful of the plight of the victim lass in distress.
        Consent  in the law of rape need not always be a prudent or
        even intelligent one.  It is easy to assume that  no  minor
        if  prudent  and  intelligent,  and  if  her  faculties  of
        reasoning and sense of  righteous  behaviour  are  properly
        developed and intact, would choose in the Indian context to
        consent   to   extra   marital   and   pre  marital  sexual
        intercourse.  Law in its wisdom chooses  to  concede  to  a
        girl,  below  18 but above sixteen, the right to consent to
        sexual intercourse.   That  legislative  wisdom  cannot  be
        questioned by the courts.  The courts under the present law
        can  only  enqire  whether  consent  in  fact  is there and
        whether such consent if any is vitiated.  If  such  consent
        is  given  by a girl aged less than 16years the same can be
        ignored.  But if the minor girl is aged above 16years,  the
        courts  can only enquire whether such consent was there and
        whether such consent if any  is  vitiated  on  any  of  the
        grounds  enumerated  in  S.90  IPC  or  clauses  thirdly to
        fifthly in S.  375 IPC; not whether it was moral or  proper
        for the girl to give consent and for the indictee to accept
        and act  on  such  consent of a minor.  Her age, by itself,
        cannot  be  reckoned  as  sufficient  to  vitiate  consent.
        Criminality  and  culpability  according  to  law,  and not
        morality of the consent or that of the  indictee,  are  the
        questions before a criminal court.
         198.   The  age  at  which  a  female  offspring is
        reckoned as available (or competent to give  the  requisite
        consent)  for sexual intercourse has often been reckoned as
        one safe  indicia  to  assess  the  culture  of  a  polity.
        Refined  societies  treat  their  children with concern and
        compassion.   In  the  march   of   civilizations   towards
        progress,  puberty  was  earlier reckoned as the biological
        rubicon which had to be crossed by a  female  child  to  be
        eligible  for  according  consent  in  marriage  and sexual
        activity.  But as civilisations advanced it was  considered
        atrocious  that  the  line  could be drawn at such an early
        age.  Hence the Indian legislature in its  wisdom  has  now
        drawn the line at sixteen years.
         199.   To  me,  it  rebels against logic and reason
        that a system which considers a person aged  less  than  18
        years  to  be  a  child/ minor, not competent to take major
        decisions affecting herself or others for  the  puposes  of
        the  Indian  Majority  Act,  Contract Act, Juvenile Justice
        Act,  Child  Marriage  Restraint  Act,  Representation   of
        Peoples Act -- nay for even Secs.  361, 366, 368 etc of the
        Indian  Penal  Code, should concede to such child the right
        to consent to sexual intercourse.   Marry,  she  cannot  at
        that age  even with the consent of her parents.  She cannot
        be taken out of the keeping of  her  lawful  guardian  even
        with her  consent for lesser purposes.  But consent she can
        to sexual intercouse so long as she does not go out of  the
        keeping of  her  lawful  guardian !  Strange propositions !
        Is law the quintessence of the enlightened common sense  of
        the community?    One is compelled to lament in resignation
        that there can be nothing more uncommon than common sense.
         200.  The Law Commission of India  did  attempt  in
        its  84th  report to bring up the age of consent in rape to
        18 years in tune with other enactments and consistent  with
        refined  and  modern  notions  regarding  the  concern  and
        compassion which  society  should  bestow  on  its  younger
        members.   The  consent  for intercourse allegedly given by
        PW3, on which aspect we have chosen to concede the  benefit
        of  doubt to the appellants, could easily have been ignored
        if that suggestion of the Commission were accepted  by  the
        Parliament.  But  alas  that  was  not  accepted.  With the
        result the age of consent in an offence of  rape  continues
        to be 16 years even today.
         201.   In  the fiercely consumerist society that we
        live in, a young girl child is  also  exposed  to  so  many
        temptations  that  it  is difficult for the child which has
        not been groomed in proper atmosphere with a  proper  value
        system inculcated  in it, to resist such temptations.  Such
        children can  be  termed  deviants  but  cannot  be  merely
        condemned and  left  to  their fate .  They too deserve the
        sympathy of the system as it is no  crime  of  theirs  that
        they are born and forced to grow up in such atmosphere.  It
        is  the  duty  of  the  secular state to give the requisite
        education to instil a proper value system  in  such  future
        citizens.   That  must  be  reckoned as the incident of the
        constitutional obligation of the State to give free primary
        education.  That obligation  cannot  be  relegated  by  the
        State to  religious  or  optional  institutions.   They too
        deserve the protection of the  law  against  unintelligent,
        imprudent  and immoral consent being extracted from them at
        that early age.  No one should be permitted by law to  rely
        on  such alleged consent given by a minor aged less than 18
        years, the fond child of law and equity.  I may sum  up  by
        stating   that  raising  the  age  of  consent  for  sexual
        intercourse to 18 consistent with the stipulations  in  the
        saner  subsequent  enactments appears to be the unavoidable
        imperative before  the  system.    At  least   the   Kerala
        Legislature  must  take  bold  efforts to bring in suitable
        local amendments to S.375 of the Indian Penal Code and give
        leadership to others.
         202.  Making of the law in a democratic  polity  is
        an agonisingly slow process.  The needs of the society have
        to be  perceived  by  the  polity.   Opinion makers have to
        perceive the need.  Public opinion  has  to  be  generated,
        Such  public opinion must get expressed on the floor of the
        legislature  and  must  get  translated  into   legislative
        action.   Legislative  stipulations  have to be enforced by
        the executive and interpreted by the adjudicators.   It  is
        only then that relief is ultimately enjoyed by the polity.
         203.  Wait, we must.  But the process has to  start
        here and  now.   Such unfortunate incidents like the one in
        this case, which seem to be  too  frequent  in  the  Kerala
        scenario  of  late, should not be viewed merely as god sent
        opportunities for improving stakes in the electoral battles
        to follow.  They must make the enlightened polity aware  of
        the need  for  changes  in the law.  Meaningful discussions
        must be aroused.    Observations  by  courts  may  help  to
        accellerate the  pace of the march towards ideal laws.  The
        purpose of this added note is just that.
         Dated this the 20th day of January, 2005.


            (JUSTICE R.  BASANT)

        Nan/


                         K.A.ABDUL GAFOOR &
                          R.BASANT, JJ.

                        -------------------------------------------------


                         Crl.A.Nos.  590, 591, 599, 600, 602, 603, 604
                         605, 606 to 619, 627, 632, 633, 633 and 637 of 2000
                         877 of 2002, Crl.M.C.  Nos.7136 of 2001,
                         3862 of 2002 & 4141 of 2003


                         JUDGMENT


                         20th January, 2005.

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