Judgment : M. KARPAGAVINAYAGAM, J. ( 1 ) THE petitioner, the unfortunate victim in a case of gang rape has knocked at the doors of the highest Forum of judiciary in the State with her fickle fingers, seeking to set aside the judgment rendered by the Court of Sessions at Cuddalore in C. A. No. 84 of 1989, acquitting the respondents 1 to 7/ accused 1 to 7, in respect of the offence under Section 376. I. P. C. though they were convicted in SC No. 281 of 1988 on the file of Assistant Sessions Judge. Villupuram for the abovesaid charge despite the strong arms of the State failed to take up the matter before this Court by way of an appeal against the acquittal. ( 2 ) THE facts of the case are these:a. PW 1-Chandra, the petitioner herein aged about 17 years is a resident of Suppampettai, residing with her parents. The respondents 1 to 7, the accused were also hailing from the same village. One Sadaiyandi Gounder, the father of P. W. 1 was working as watchman, in a workshop in the same village. Victim Chandra/pw 1 used to take meals for her father every day evening to the workshop. b. One week prior to the occurrence, while the victim -PW 1 was sleeping inside her house, the 2nd respondent Manoharan, stealthily entered into her house woke her up and tried to misbehave. But the victim raised noise, rushed into the next room and informed this to her mother. P. W. 3. So, the 2nd respondent took to his heels. Thereafter. PW 3 and her husband Sadaiyandi Gounder, the parents of the victim/pw 1, alongwith her went to the house of 2nd respondent and complained about him to his parents. They in turn requested the parents of PW 1 not to reveal the same to anyone else and, that they would warn the 2nd respondent suitably. However, this came to be known to other villagers also within a few days thereafter. c. The ill-fated incident took place on 15-11-1987. At about 7. 00 p. m. the petitioner /victim went to the workshop of her father in order to provide night food to him. When she reached the workshop, she was informed that her father left the workshop urgently in order to go to Semmedu Village. Therefore, PW 1 came back. c. The ill-fated incident took place on 15-11-1987. At about 7. 00 p. m. the petitioner /victim went to the workshop of her father in order to provide night food to him. When she reached the workshop, she was informed that her father left the workshop urgently in order to go to Semmedu Village. Therefore, PW 1 came back. On the way, PW 2 Kannamma also was proceeding towards the village alongwith her two children. It was at about 8. 00 p. m. then. d. While they were near to the Village Ramakrishnan, A-1/ the ist respondent herein, suddenly appeared before them and caught hold of the hands of PW 1. She wriggled out from his grip and tried to escape. But A-1 removed his lungi and put the same over her head and pull her towards back. On seeing this incident, PW 2 Kannamma who came behind PW 1, shouted at A-1 saying that TTXXXXXTT. A-1 retaliated saying that she could mind her own business and that if she would tell it to any person in the village he would murder her. Therefore. PW 2 alongwith her children left the scene and ran towards the village. e. In the meantime, the victim screamed, but A-1 by putting adoth piece shut out her mouth and gave a signal whistle. All the other accused who hide themselves near the bush came and appeared at the scene. All the accused forcibly lifted her and took her to the Pambai river side situate at a short distance. A-3 Karunanidhi and A-4 Muthukrishnan, removed her dress. She cried and requested them not to remove her clothes by prostrating on their feet. A-5 Chinnathambi and A-6 Thangaraj tore her jacket and pushed her on the ground. A-2 Manoharan and A-7 Sundaramurthi tied the hands of the victim. A-3 Karunanidhi had a sexual intercourse with her. The victim kicked the 3rd accused. However, she could not do anything, since A-2 Manoharan and A-6 Thangaraj caught hold of her hands and legs. Thereafter, A-1 Ramachandran committed rape on her. Then all the other accused committed the similar act one after another, while the remaining accused caught hold her legs and hands. f. In the course of time, she be came semi-conscious. Thereafter all the accused put her in water in the field. After she regained full consciousness, she got up. Thereafter, A-1 Ramachandran committed rape on her. Then all the other accused committed the similar act one after another, while the remaining accused caught hold her legs and hands. f. In the course of time, she be came semi-conscious. Thereafter all the accused put her in water in the field. After she regained full consciousness, she got up. All the accused asked her to go home, saying that she should not tell any person, or else, she would be murdered. A-1 gave Rs. 100/-to PW 1 and asked her not to tell this in the village. The victim/petitioner herein refused to receive the same amount and then the accused brought the victim upto the entrance of the village and left. They also showed a knife to the victim, threatening her that she should not tell at any cost to any person. g. When PW 1 reached her house, it was at about io. 00 p. m. She informed the incident immediately to her mother on reaching her home. PW 3 Poongavanam, since it was night time, and the husband of PW 3 was also not available in the house, went to the house of PW 4, Subramani, only next day morning, to inform him. h. PW 4 is the elder brother of PW 1. When they reached his house, he was not available. He came to his house only in the night. PW 4, on being informed by PW5 i and 3, decided to complain about the incident to the Panchayat Board President, instead of going to the Police Station. PW 4 took PW 1 to Doctor at Panruti, and took treatment from him since the victim had a temperature then. Thereafter, PW 4 went to the Panchayat Board President, and informed this incident. The President asked the brother of the victim/pw 4, to give a complaint to the police. i. On 20-11-i987, at about 3. 00 p. m. , PW 1 came, to Villupuram Tuluk Police Station and gave a complaint Ex. P1 to PW 9 Sub-Inspector of Police. On the basis of the said complaint, PW 9 registered a case in Cr. No. 445 of i987 under Section 376, I. P. C. and recovered M. O. i saree, M. O. 2- jacket and M. O. 3 in skirt worn by PW 1 under Form No. 95. PW 9 went to the spot and prepared observation mahazar - Ex. On the basis of the said complaint, PW 9 registered a case in Cr. No. 445 of i987 under Section 376, I. P. C. and recovered M. O. i saree, M. O. 2- jacket and M. O. 3 in skirt worn by PW 1 under Form No. 95. PW 9 went to the spot and prepared observation mahazar - Ex. P2 and drew Ex. P 9 rough sketch, attested by PW 5 Krishnan, a local resident of the village. PW 9 then examined PW 2 Kannamma, PW 4 Subramani, PW 3 Poongavanam, PW 1s father Sadaiyandi and others. Meanwhile, he arranged to send the victim through woman police Constable to Doctor for examination and treatment. j. PW 8-Doctor Vanitha, attached to Government Hospital, Cuddalore, examined PW 1, on 21-11-1987 at 9. 45 a. m. , and found the following: Auxilary hair was present. Breasts were well developed. Teeth 14 in the upper jaw and 14 in the lower jaw. Pubic hair was present. No evidence of external injury over the breast or over the perineum or thighs. On vaginal examination, no evidence over the vulva. No stains of semen or blood over the external genitalia. Hymen absent. Vagina easily admits two fingers. (Right index and middle finger) Uterus antiverted. Normal size. White discharge present. No evidence of spermatozavoa mobile. Vaginal smear was taken for microscopic examination. On radiological examination PW 5 Doctor was of the opinion that PW 1 was aged about 18 to 19 years by her appearance and also by physical examination. Ex. P8 is the certificate issued by Doctor in respect of the victim! PW 1. k. On 21-11-1987 at 11 a. m. , PW 9, the Investigating Officer in this case went to Thiruvamathur junction road, and arrested A-1 to A-S and A-7 and sent them for medical examination. PW 6 Doctor Krishnamurthy, attached to Government Hospital, Villupuram examined A-1 to A-5 and A-7 and gave Ex. P3 potency certificate in respect of them. Ex. P4 is the potency certificate issued by PW 6 Doctor, who examined A-6 on 16-3-1988 after his arrest on 10-3-1988 by the successor officer of PW 9. l. PW 9, during the course of investigation sent the M. Os. 1 to 3, to the Court for sending them to Forensic Laboratory. PW7, Head Clerk, Judicial Magistrates Court at Villupuram, sent the M. Os. l. PW 9, during the course of investigation sent the M. Os. 1 to 3, to the Court for sending them to Forensic Laboratory. PW7, Head Clerk, Judicial Magistrates Court at Villupuram, sent the M. Os. , alongwith the covering letter of the Magistrate Ex. PS for chemical analysis. Ex. P6 is the Chemical Analysts report and Ex. P7 is the Serologists report. On 5-8-1988,after completing the investigation, he Inspector of Police who succeeded PW 9,filed the chargesheet against all the 7 accused for the offence under Section 376, I. P. C. ( 3 ) AFTER committal, the trial Court in S. C. No. 231 of 1988, after considering the evidence through PW5 1 to 9, and Exs. P1 to P9 found the accused guilty for the offence under Section 376. IPC and sentenced them to undergo R. I. for 7 years. ( 4 ) THE respondents 1 to 7 herein, challenged this judgment by presenting an appeal before the Sessions Court, South Arcot District at Cuddalore, in C. A. No. 84 of 1989. The appellate Court on consideration of the materials and submission of the Counsel on either side acquitted the accused holding that the offence under Section 376. IPC was not proved against the accused beyond reasonable doubt. As referred earlier, the State did not prefer an appeal. Therefore, the present action has been resorted to by the victim in this case by filing the present revision before this Court. ( 5 ) I have heard learned Counsel for the revision petitioner, and the learned Counsel for the respondents 1 to 7 and the learned Government Advocate for the 8th respondent/state. I have gone through the judgments of both the Courts below and also carefully scrutinized the materials placed before the trial Court. ( 6 ) BEFORE considering the merits of this revision let me at the outset point out the various reasonings given by the lower appellate Court, for acquitting the accused in this case, which are given below:i. There is delay in lodging the FIR. The occurrence had taken place on 15-11-1987 at about 8. 00 p. m. at the outskirt of the village. PW 1 informed this incident at 10. 00 p. m. to. PW 3 Poongavanam her mother. The Police Station in the village is situate at 7. 00 kms. away from the residence of PW 1. The occurrence had taken place on 15-11-1987 at about 8. 00 p. m. at the outskirt of the village. PW 1 informed this incident at 10. 00 p. m. to. PW 3 Poongavanam her mother. The Police Station in the village is situate at 7. 00 kms. away from the residence of PW 1. PW s 1 and 3 informed PW 4 next day. PW 4 advised them to go to Panchayat Board President. Only on his advice, they decided to give Ex. P1 complaint to police. As such, the complaint to police was given only on 20-11-1987 at 3. 00 p. m. Accordingly, there was a delay of 5 days. ii. The said Panchayat Board President was not examined. PW 1 would say that she gave the complaint to the police on Tuesday. This is factually wrong. PW 9 Investigating Officer would say that the complaint was given only on, Friday, though the occurrence had taken place on Sunday at nighttime. This delay was not explained by PW5 1, 3 and 4. Father of PW 1 was also not examined. So, the possibility of concocting the false complaint after consultation by PW5 1. 3 and 4 could not be ruled out. iii. There is no corroboration for the evidence of PW 1, the victim in this case. iv. PW 4 would admit that he took PW 1 to the Hospital, and did not inform to the Doctor about the incident. Before reaching the said Hospital. PW 4 had to cross the Police Station. Treatment was given to PW 1, only for fever. So, the evidence of PW 4 is doubtful. v. PW 1, the victim would admit that A-1. A-3 and A-4 are her cousin brothers. PW 3, the mother of the victim would say that A-6 Thangaraj was like her son. Therefore, A-1, A-3, A-4 and A-6 who are in brother relationship with the victim, could not think of committing rape on her. vi. According to Panchayat Board President, she was raped by A-1 to A-7 on Sunday against her consent. On Monday, when PW 1 accompanied by PW 4 was examined by the Doctor at Panruti, she had not shown the injuries on her private parts. If occurrence had taken place on Sunday night, PW5 1 and 4 ought to have informed about this incident to the said Doctor, when PW 1 took treatment for her fever. On Monday, when PW 1 accompanied by PW 4 was examined by the Doctor at Panruti, she had not shown the injuries on her private parts. If occurrence had taken place on Sunday night, PW5 1 and 4 ought to have informed about this incident to the said Doctor, when PW 1 took treatment for her fever. vii. The complaint was given on 20-11-1987. On 21-11-1987, at 9,45 a. m. , PW 8 Doctor Vanitha, did not find any injury on the victim. PW 8 also would say that it would take 7 or 8 days, to get the injuries, if any, caused due to the commission of rape, cured. It is also clear from the evidence of PW 8 Doctor, that the victim was accustomed to intercourse. Therefore, the medical evidence through PW 8 and Ex. P 8 certificate would not support the testimony of PW 1. viii. According to the prosecution, the motive for the occurrence is that one week prior to the occurrence, A-2 came to the house of PW 1, and attempted to rape her while she was sleeping, and that when PW 1 cried, A-2 ran away, and that when this incident was complained to the parents of A-2, they in turn requested the family of the victim, not to disclose the same to anyone, and despite this, the matter came to be known to the villagers. About this motive, PW 3 alone speaks in her deposition. But the said incident is not mentioned in Ex. P1 complaint given by PW 1. PW 3 would say in her deposition, that they did not inform the incident to outsiders, as per the request of the parents of A-2. Therefore. A-2 could not have the motive to commit rape on the victim. Even assuming that A-2 had some motive, there was no motive for A-1, A-3 to A-7, for committing rape on the victim. ix. From the evidence of PW 1, it is clear that she had illicit intimacy with one Panneer, who belongs to Asari community. PW 2 Kannamma, who belongs to the same community would admit that PW 1 used to talk with the said Panneer and the same was reprimanded by the accused persons who are relations to PW 1, since she had the contact with a person of different community. PW 2 Kannamma, who belongs to the same community would admit that PW 1 used to talk with the said Panneer and the same was reprimanded by the accused persons who are relations to PW 1, since she had the contact with a person of different community. This also would show that there was illicit intimacy between PW 1 and the said Panneer. PW 8 Doctor would say, supported by Ex. P8, that PW 1 was accustomed to intercourse. Therefore, the warning given by the accused, who and relations to PW 1, was the reason for PW 1 to give a false complaint against the accused on the advice of Panneer. x. At the time of giving Ex. P1 complaint. PW 1 handed over M. Os. 1 to 3, the clothes worn by her at the time of commission of rape by the accused to the police. She had also mentioned in Ex. P1, that the clothes have already been washed. As per Ex. P7, M. O. 3-inskirt contained human blood. If M. O. 3 was washed as spoken to by PW 1, doubt arises as to how human blood was present in M. O. 3-inskirt. However, the Serologist was not able to find out the group of blood. xi. PW 1 implicates A-1 to A-7, whereas PW 2 Kannamma, who accompanied the victim did implicate only A-1 and not others. As per the evidence of PW 2 her young children are beggars taking alms from the passengers at Villupuram Bus Stand. She would also say that she had no other job and that she had to live only with the money collected by her children, through begging. Therefore, PW 2, who did not have any profession could have been easily procured by the prosecution for giving false evidence in Court. So, her evidence is doubtful. xii. Though PW 1 would mention in Ex. P1. that A-1 to A-7 committed rape on her, one after another, she did not say in her deposition like that. But she would say in Court that A-3 alone had intercourse with her and had not stated that A-1, A-2. A-4 to A7 had sexual intercourse with her. Therefore, it is doubtful whether PW 1 would have given all those details, implicating all accused, in the complaint. xiii. In Ex. But she would say in Court that A-3 alone had intercourse with her and had not stated that A-1, A-2. A-4 to A7 had sexual intercourse with her. Therefore, it is doubtful whether PW 1 would have given all those details, implicating all accused, in the complaint. xiii. In Ex. P1, it is mentioned that A-5 and A-6 tore the jacket of PW 1, and pushed her on the back. But that aspect has not been spoken to by PWi in her evidence. In Ex. Pi, it is stated that A-2 and A-7 tied her hands. But PW 1, in her deposition would say that A2 and A-6 caught hold of her hands and legs. Therefore, there are many contradictions in between Ex. Pi complaint and the deposition of PW 1. ( 7 ) IT is settled law that this Court can set aside the order of acquittal in revision at the instance of private party, though the State may not have thought it fit to file an appeal. But this power could be exercised only in cases, where there is a glaring defect in the procedure or error in law and there is a flagrant miscarriage of justice or where the material evidence had been completely overlooked or totally misread by, the trial Court. It is also a settled principle that the revisional jurisdiction is not to be lightly exercised, especially when it is invoked by a private party, against an order of acquittal, but it could be exercised only in exceptional cases, where the interest of public justice required interference for the correction of a manifest irregularity, or for the prevention of gross-miscarriage of justice. This jurisdiction confers an extraordinary discretionary power to this Court to be exercised in aid of justice, to set right gross injustice and to see that justice is done in accordance with the recognised Rules of Criminal Jurisprudence, by the Subordinate Courts, without exceeding that jurisdiction and by not abusing the powers conferred on them in law. As a general rule, this power does not contemplate interference by this Court, with the conclusion of fact, in the absence of any serious illegal infirmity and failure of justice. As a general rule, this power does not contemplate interference by this Court, with the conclusion of fact, in the absence of any serious illegal infirmity and failure of justice. ( 8 ) LET me refer the various citations of this Court, as well as the Apex Court, giving out the categories of cases, attracting interference of the High Court, on a revision filed by a private party. i. D. Stephens v. Nosibolla, ii. Manohar Lal v. The State iii. Logendranath Jha and Others v. Shri Polai Lal Biswas, iv. K. Chinnaswamy v. State of Andhra Pradesh, v. Mahendra Pratap Singh v. Sarju Singh and Another, vi. Khetra Basi Semal and Another v. The State of Orissa etc. , vii. Changanti Kotaiah v. Goginoni Venkateshwar Rao, viii. Akalu Ahir and Others v. Ramdeo Ram, ix. Samson Kyam Kemkar v. State of Maharashtra, x. Pakalapati Narayana Gajapathi Raju and Others v. Bonapalli Peda Appadu and Another, xi. Satyendra Nath Dutta v. Ram Narain, xii. Ramaswami v. Muthu and Others, (Madras High Court), xiii. Iqbal Singh v. Gurmol Singh and Another, xiv. Ayodhya Dube v. Ram Sumer Singh, xv. Marappa Gounder v. Venkatachalam and Another (Madras High Court), xvi. In re: Krishnamoorthy and Another, xvii. Laxman Singh v. Jai Prakash arid Others, :viii. S. K. Grover v. Chandra Prakash and Another, xix. Joseph and 16 Others v. Papusami Reddiar, xx. Kadiresan v. Kasim and Others, xxi. Soundararajan v. Subramani and Another, xxii. Babu v. State of Kerala, xiii. Baidyanatha Das v. Gnana Das and Others (Orissa High Court) cxiv. Niranjan Kumar Das v. Ranadhir Roy and Others, xxv. Benudhar Routra v. Raula Maheswar Sam and Another, cxvi. Kalandi Charan Pani v. Ganesh Dalal and Others, xvii. Abboy Naidu v. R. Sundararajan (Madras High Court), viii. Sarju Pershad v. State (Delhi High Court ). ( 9 ) IN the instant case, the trial Court meticulously made a threadbare consideration of the entire materials and found the accused guilty. However, the appellate Court disbelieved the case of prosecution on the basis of the reasoning categorised above. Abboy Naidu v. R. Sundararajan (Madras High Court), viii. Sarju Pershad v. State (Delhi High Court ). ( 9 ) IN the instant case, the trial Court meticulously made a threadbare consideration of the entire materials and found the accused guilty. However, the appellate Court disbelieved the case of prosecution on the basis of the reasoning categorised above. ( 10 ) IN the light of the above principles, let me now consider, each one of the reasonings given by the appellate Court to find out whether there is any ground made out warranting interference with its judgment acquitting the respondents 1 to 7, taking into consideration of the guidelines given in various authorities relating to the scope of revision against the order of acquittal at the instance of the private party: (A) The first reasoning is the delay in lodging of the FIR. Admittedly, the occurrence had taken place at 8. 00 p. m. , on 15-11-1987. Though the Police Station is situate at a distance of 7 km. away from the village, the complaint was lodged by PW 1 only on 20-11-1987 at 3. 00 p. m. i. The Court should not loose sight of the fact that invariably in the case of rape, delay is bound to occur, in view of the social environment prevalent in India, especially in Tamil Nadu. ii. According to PW 3, even on the same day, PW 1, at about 10. 00 p. m. , informed this incident to her. The husband of PW 3, viz. , the father of PW 1/ victim was not available then. Next day, PW 3 and PW 1 went to Semmedu Village, where PW 4 Subramani, the elder brother of PW 1 was residing. Even there, PW 4 was not available. They were able to inform PW 4, only two days later. PW 4, wanted to report the matter first to the Panchayat Board President. After meeting him, and on consideration of the pros and cons of the launching of the complaint, PW 4 took a decision to give complaint to the police. That was why the delay had occurred. These things have been spoken to by PW5 1,3 and 4. iii. PW 4, wanted to report the matter first to the Panchayat Board President. After meeting him, and on consideration of the pros and cons of the launching of the complaint, PW 4 took a decision to give complaint to the police. That was why the delay had occurred. These things have been spoken to by PW5 1,3 and 4. iii. The appellate Court instead of considering the reliability of PW5 1,3 and 4, with reference to their explanation for the delay in lodging the FIR, disbelieved their version, merely because the father of PW 1, and the Panchayat Board President were not examined. This, in my view, would amount to non-consideration of the materials given by PW5 1,3 and 4, explaining the delay of 5 days. Such explanation is also found available in Ex. P l complaint. The Apex Court in its repeated decisions considered on the aspect of delay, especially in rape cases, which we shall deal with later. (B) The second reasoning given by the appellate Court is that there is no corroboration to the testimony of PW 1. i. This reasoning is basically wrong in view of the rulings of this Court as well as the Apex Court, that the testimony of a prosecutrix in a rape case cannot be construed to be the evidence of an accomplice. Even in the absence of corroboration, if the evidence of victim in a rape case is found to be reliable, the Court can convict the accused. In the instant case, the appellate Court never made any endeavour to give proper reasonings, as to how the testimony of the victim is unreliable. ii. Merely because PW 8 Doctor would say that she would not find any external injury on the victim, the appellate Court could not come to such a conclusion that the complaint given by PW 1 is false, in the absence of independent analysis of the testimony of the victim. Moreover, it cannot be said, that there is no corroboration. PW 2, who accompanied PW 1 would say that A-1 who suddenly appeared before them at the scene, forcibly took PW 1 to a secluded place, after threatening PW 2, that he would kill her. As such, though there are materials, corroborating the evidence of PW 1, through PW 2, the appellate Court committed a grave mistake in observing that there is no corroboration. iii. As such, though there are materials, corroborating the evidence of PW 1, through PW 2, the appellate Court committed a grave mistake in observing that there is no corroboration. iii. Moreover, M. O. 3petticoat, which was worn by the victim at the time of occurrence found to contain human blood as per the Serologists report. Therefore, instead of considering the corroborative materials, the appellate Court had jumped to the conclusion to the effect that there is no corroboration for the evidence of PW 1. (C) The third reasoning is the non-mentioning about the incident by PW5 1 and 4, to the Doctor, at Panruti. i. PW 1 took treatment for fever. The appellate Court has overlooked to the important aspect in this case, that when PW 4 took the victim/pw 1 to the Hospital, he had not decided to give complaint to police. According to him, he wanted to report the matter only to the local Panchayat Board President. His original intention was not to give any complaint to police, since it might cause damage to the reputation of his sister, the petitioner herein, and his family Since his sister had high temperature, for getting immediate treatment, PW 4 took her to the Doctor at Panruti. If PW 1 or PW 4 informed the incident to the said Doctor, who happens to be a Government Doctor, he would certainly send intimation to police, being medico legal case. In order to avoid this PW 4, did not mention the incident to - Doctor, at Panruti. ii. That was the reason. PW 4 did not go to the Police Station, which is situate on the way to his hospital. This explanation given by PW 4 during the course of his evidence has not been taken into consideration by the appellate Court. Therefore, by ignoring this evidence, the appellate Court could not come to the conclusion that the occurrence had not taken place. Since it was not informed to the Doctor at Panruti, who treated PW 1 for her fever, and on that reason it could not be said that the evidence of PW 4 is doubtful. (D) The next reasoning is that the accused persons who are in the brother relationship with, the victim, could not have committed the offence of rape on her. i. Admittedly, the accused are not own brothers of PW 1. They are only cousins. (D) The next reasoning is that the accused persons who are in the brother relationship with, the victim, could not have committed the offence of rape on her. i. Admittedly, the accused are not own brothers of PW 1. They are only cousins. The reason for disbelieving PW 1, by the appellate Court and for arriving at a conclusion that the accused being brothers in relation would not have committed rape on her, is not on the basis of any evidence available in this case. In the same way, it could also be said that PW 1 would not give such a complaint as against her own cousins, especially, when there is no reason for her to falsely implicate them at the risk of her future. Therefore, this reasoning is also on the basis of surmises and conjectures. (E) The next reasoning is that the medical evidence did not lend assurance to the case of prosecution, as PW B Doctor found no injury on the victim. i. According to PW 1, all the 7 accused forcibly caught hold of her legs and hands, and one after another committed rape on her. As indicated earlier due to the circumstances narrated by PW5 1, 3 and 4, the complaint was given only after five days. Only on the 6th day, the victim was examined by PW 8 - Doctor. ii. Though PW 8 - Doctor would say, that there was no evidence for recent intercourse, she stated that it would only mean that recent intercourse was only with two or three days before her examination. The occurrence had taken place six days earlier to the examination. It is the specific evidence of PW 8, that six or seven days time could be enough for the injuries getting cured. Therefore, the absence of any injury on the 6th or 7th day after the date of occurrence could not be taken as a ground to hold that the medical evidence does not corroborate the testimony of the victim. iii. Of course, no blood was found from the private part of the victim, but it is not the case of the prosecution, that PW 1 did not take bath subsequent to the occurrence, till she was examined by the Doctor on 21-11-1987. iii. Of course, no blood was found from the private part of the victim, but it is not the case of the prosecution, that PW 1 did not take bath subsequent to the occurrence, till she was examined by the Doctor on 21-11-1987. So, in the peculiar facts and circumstances of the case, the absence of injury on the private part of the victim cannot, at all, be taken to hold that the evidence of PW 12 could not be acted upon. (F) The next reasoning is that the earlier incident about A-2 giving rise to the motive was not mentioned in Ex. P 1, and that as against other accused, there was no motive attributed at all. i. This observation made by the appellate Court is purely out of misreading of the evidence. Regarding the earlier incident, in which A-2 came to the house of the victim and attempted to commit rape on her, it is very much mentioned in Ex. P1 -complaint. It is also stated there that when this was complained to the parents of A-2, they requested the parents of PW 1, not to divulge this to anyone, and accordingly, they did not disclose the same to anyone. In such circumstances, there is no necessity for the victim and PW 3, to implicate A-2 in a case 1997 Page 11 of 16 of rape. ii. Moreover, for committing rape, no motive is necessary. If actually, PW 1 had any motive againsta-2, due to the earlier incident, PW 1 need not have implicated A-1, A-3 to A-7, especially when they happened to be her cousins. So, in the absence of motive for PW 1, for implicating all the accused, the case cannot be thrown out, by merely saying that there is no motive for the accused for committing rape on her. (G) The next reasoning given by the appellate Court is that this is a false case given by PW 1 at the instance of one Panneer, with whom, she had illicit intimacy. i. To arrive at this conclusion there is no material whatsoever available in this case. It is quite unfortunate for the appellate Court to say that PW 1 is not a woman of virtue. PW 1 would specifically say that she used to -talk to Panneer, and that she never had any illicit affairs with the said Panneer. i. To arrive at this conclusion there is no material whatsoever available in this case. It is quite unfortunate for the appellate Court to say that PW 1 is not a woman of virtue. PW 1 would specifically say that she used to -talk to Panneer, and that she never had any illicit affairs with the said Panneer. PW 2 and PW 3 also would say the same thing. When such being the case, the appellate Court could not come to such a conclusion, that the victim PW 1 had illicit intimacy with the said Panneer. No witness would admit nor any reference from them about the sexual connection between PW 1 and the said Panneer. Therefore. I shall express my strong disapproval for the appellate Courts casting a stigma on the character of the prosecutrix. I could only say the said observation that PW 1 had illicit intimacy with another without any material whatsoever, lacks sobriety expected of a Judge. (H) The appellate Courts another reasoning is that there were no human blood or semen found in the clothes of the victim. ii. Even as per Ex. P1, she had washed her clothes. The victim, an uneducated girl, not having known about the consequences must have washed her clothes. This was clearly mentioned in Ex. P1 itself. That was the reason why as per Ex. P7, Serologist was only able to find out the nature of the blood, viz, human blood, but not able to find out the grouping of blood. So, this shows that the evidence of PW 1, especially the human blood was found to be stained in M. O. 3-Petticoat, is so natural. (I) Yet another reason for disbelieving the evidence of PW 2 is that. PW 2 did hot implicate all the accused, except A-1, and that she must have purchased to speak falsehood since she is depending upon the income of her children, who are the road beggars. Even in Ex. P1. the name of PW 2 is mentioned. According to PW 1, the first man appeared on the scene was A-1, who took her forcibly. When, PW 2 objected A-1, he threatened her to leave the place and asked her not to divulge this to anybody or else, he would murder her. Even in Ex. P1. the name of PW 2 is mentioned. According to PW 1, the first man appeared on the scene was A-1, who took her forcibly. When, PW 2 objected A-1, he threatened her to leave the place and asked her not to divulge this to anybody or else, he would murder her. Immediately, thereafter PW 2 left the scene alongwith her children out of fear and then only A-1 gave a whistle, signalling the other accused who were hiding themselves in a nearby bush, to come to the scene. Then only, the other accused came and took the victim to a secluded place for committing rape. Therefore, according to PW 2 she had only seen the initial portion of the occurrence. That was the reason, why she implicated only A-1. If she is really a procured witness she would have been, made to implicate all the accused. That was not done in this case. Moreover, the appellate Court ought not to have come to the conclusion that she is a purchased and procured witness, since she is depending upon the income of her children who are beggars in profession. (J) Again the appellate Court committed a factual wrong by observing that though PW 1 has implicated A-1 to A-7 in the complaint in her deposition she implicated A3 alone. But a reading of the deposition of PW 1 would make it very clear, that she implicated all the accused. So, it is not correct to observe that PW 1 did not implicate all the accused, except A-3 in her evidence. (K) The appellate Court, while referring about the contradictions observed that there is variation with reference to the parts played by some accused as to who caught hold of the victim, while rape was committed on her by the accused. It could be seen that according to prosecution case, all the seven persons committed rape on the victim, one after another, while the other accused caught hold of the hands and legs of the victim. Therefore, these so-called variations cannot be considered to be a vital contradiction at all. It could be seen that according to prosecution case, all the seven persons committed rape on the victim, one after another, while the other accused caught hold of the hands and legs of the victim. Therefore, these so-called variations cannot be considered to be a vital contradiction at all. ( 11 ) THUS, in view of the above discussion, it is clear, that the appellate Court had acquitted the accused, on the grounds, which are absolutely on misreading of evidence, having overlooked and ignored the vital piece of evidence, which would connect the accused with the commission of crime. The net result is that the judgment of appellate Court led to a grave miscarriage of justice. ( 12 ) IN the case of rape, the method of appreciation of evidence by considering the totality of the circumstances, and the circumstances under which the delay would occur in filing the complaint have been elaborately discussed in the following decisions of the Apex Court: - (a) In State of Maharashtra v. Chandraprakash Kewalchand Jain, the Supreme Court observed thus: A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The 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. 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. 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. T 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. (b) In Kamel Singh v. State of M. P. , the Apex Court held as follows: It was said that there was considerable delay and sufficient time for tutoring and therefore, her evidence could not be believed. There is no merit in this contention. The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less than promptly does not raise the inference that the complaint was false. The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less than promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society’s attitude towards such woman; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false. (c) The Supreme Court in the case of The State of Punjab v. Gurmit Singh and Others, observed as hereunder: The Courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complaint about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged It was only when the Panchayats failed to provide any relief or render any justice to the prosecutrix, that she and her family decided to report the matter to the police and before doing that naturally the father and mother of the prosecutrix discussed whether or not to lodge a report with the police in view of the repercussions it might have on the reputation and future prospects of the marriage etc. of their daughter. It appears that the trial Court searched for contradictions and variations in the statement of the prosecutrix microscopically, so as to disbelieve her version The Courts must, while evaluating evidence, remain alive, to the fact that in a case of rape, no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution casenr even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution casenr even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. Seeking corroboration of her statement, before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelieve or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. It must not overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another persons lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. The trial Court not only erroneously disbelieved the prosecutrix but quite uncharitably and unjustifiably even characterised her as a girl of loose morals or such type of a girl We must express our strong disapproval of the approach of the trial Court and its casting a stigma on the character of the prosecutrix. The observations lack sobriety expected of a Judge. Such like stigmas have the potential of not only discouraging an even otherwise reluctant victim of sexual assault to bring forth complaint for trial of criminals thereby making the society to suffer by letting the criminal escape even a trial. The Courts are expected to use self-restraint while recording such findings which have larger repercussions so far as the future of the victim of the sex crime is concerned and even wider implications on the society as a whole where the victim of crime is discouraged -the criminal encouraged and in turn crime gets rewarded. The Courts are expected to use self-restraint while recording such findings which have larger repercussions so far as the future of the victim of the sex crime is concerned and even wider implications on the society as a whole where the victim of crime is discouraged -the criminal encouraged and in turn crime gets rewarded. Even in cases, unlike the present case, where there is some acceptable material on the record to show that the victim was habituated to sexual intercourse, no such inference like the victim being a girl of loose moral character is permissible to be drawn from that circumstance alone. Even if the prosecutrix, in a given case, has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. No stigma, like the one as cast in the present case should be cast against such a witness by the Courts, for after all it is the accused and not the victim, of sex crime who is on trial in the Court. ( 13 ) IN the light of the above principles, enunciated above, I am of the considered view, that the appellate Court had committed a grave illegality, in acquitting the accused, by ignoring various important pieces of evidence, and caused grave injustice, on misreading of evidence too. Therefore, as indicated earlier, this Court feels, that the judgment of the appellate Court is liable to be set aside. ( 14 ) SECTION 401, Cr. P. C. , does not confer any power to this Court for converting the finding of acquittal into one of conviction. Therefore, in the event of this Court coming into a conclusion that the judgment of trial Court is liable to be set aside, this Court, at the most can remand the matter for retrial to the trial Court, and in the case, where this Court feels that the appellate Court had committed illegality warranting interference by this Court under revisional jurisdiction, could not remand for retrial. But the proper order in such cases could be the remand of the matter to the appellate Court for rehearing. This dictum has been laid down by the Apex Court in Chinnaswamy Reddy v. State of Andhra Pradesh and Another. But the proper order in such cases could be the remand of the matter to the appellate Court for rehearing. This dictum has been laid down by the Apex Court in Chinnaswamy Reddy v. State of Andhra Pradesh and Another. The relevant observation of the Apex Court is as follows: Two contingencies arise in such a case. In the first place there may be an acquittal by the trial Court. In such a case if the High Court is justified, on principles we have enunciated above, to interfere with the order of acquittal in revision, the only course open to it is to set aside the acquittal and send the case back to the trial Court for retrial. But there may be another type of case, namely, where the trial Court has convicted the accused while the Appellate Court has acquitted him. In such a case if the conclusion of the High Court is that the order of the appellate Court must be set aside, the question is whether the appellate Court should be ordered to re- hear the appeal after admitting the statement it had ruled out or whether there should necessarily be a retrial. So far as this is concerned, we are of opinion that it is open to the High Court to take either of the two courses. It may order a retrial or it may order the appellate Court to re-hear the appeal. It will depend upon the facts of each case whether the High Court would order the appellate Court to rehear the appeal or would order a retrial by the trial Court. Where, as in this case, the entire evidence is there and it was the appellate Court, which ruled out the evidence that had been admitted by the trial Court, the proper course in our opinion is to send back the appeal for re-hearing to the appellate Court. In such a case the order of the trial Court would stand subject to the decision of the appellate Court on rehearing. In the present case it is not disputed that the entire evidence has been led and the only defect is that the appellate Court wrongly ruled out evidence, which was admitted by the trial Court. In such a case the order of the trial Court would stand subject to the decision of the appellate Court on rehearing. In the present case it is not disputed that the entire evidence has been led and the only defect is that the appellate Court wrongly ruled out evidence, which was admitted by the trial Court. In the circumstances we are of opinion that the proper course is to direct the appellate Court to rehear the appeal and either maintain the conviction after taking into consideration the evidence which was ruled out by it previously or to acquit the accused if that is the just course to take. ( 15 ) IN view of the guidelines given in the above judgment rendered by the Apex Court, this Court is inclined to remand the matter to the lower appellate Court for hearing afresh on the basis of the materials available already on record. ( 16 ) IN the result, the revision is allowed. The judgment of the appellate Court in C. A. No. 84 of 1989, acquitting the respondents 1 to 7, A-1 to A-7 is set aside. The judgment in S. C. No. 231 of 1988, on the file of Assistant Sessions Judge Villupuram is restored. The lower appellate Court is directed to rehear the appeal and decide the case in accordance with law. However. I would like to add that the appellate Court while arriving at a conclusion after rehearing the parties should not be influenced by any of the observations made in this order by this Court. At the same time, however, the appellate Court should bear in mind the totality of the circumstances of the case and the method of appreciation as propounded by the Apex Court, as referred above, while coming to the final conclusion. The appellate Court is further directed to dispose of the appeal preferably within three months from the date of receipt of the copy of this order and records. ( 17 ) BEFORE parting with the case there is one other aspect, to which I would like to advert to. The words of Justice Dr. The appellate Court is further directed to dispose of the appeal preferably within three months from the date of receipt of the copy of this order and records. ( 17 ) BEFORE parting with the case there is one other aspect, to which I would like to advert to. The words of Justice Dr. A. S. Anand, as found in the above referred to case reported in 1996 (1) Crimes 37, would be relevant in the context, that now-a-days there is an increased violence of the privacy and personal integrity of the women which necessitates the Court to take more responsibility to deal with the cases with utmost sensitivity. The following is the relevant portion: Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating womens rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the Victims of sex crimes. We must remember that a rapist not only violates the victims privacy and personal integrity, but inevitably causes serious psychological as well as physical hark in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence, which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence, which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. ( 18 ) THE guidelines given by the Apex Court would be a useful reference in the matter of the appreciation of evidence in the cases involving offence of rape. In my opinion, the last paragraph of this order should be circulated to all the Subordinate Judicial Officers dealing with the cases involving the offence under Section 376, IPC. Therefore, the Registry is directed to communicate the last paragraph viz. , para No. 17 of this order to the aforementioned Judicial Officers forthwith. Registry is also directed to send the records at once. Petition allowed.