JUDGMENT This Criminal Appeal is filed by A-1 and A-2 against the judgment-dated 9-2-1996 made in SC.No.103 of 1993 on the file of the learned Assistant Sessions Judge, West Godavari Division at Kovvur in convicting them under Section 376 Clause (2)(g) IPC and sentencing them to suffer R.I. for a period of 10 years and also to pay a fine of Rs. 250/- each, in default, to suffer R.I. for a period of 3 months. 2. The police registered the case on the complaint given by the victim girl-Nathala Pushpa w/o Peddiraju, aged about 18 years, belongs to Mala Caste, resident of Sitaramapuram Colony, Kovvur. In the said complaint she stated that in the year 1990, her marriage was performed with the said Peddiraju; and herself and her husband were living amicably by doing agricultural coolie works. On 19-7-1991, she went to coolie work and returned to the house in the evening and cooked food; and her mother-in-law (P.W.4) chastised her on the ground that the she was cooking more rice unnecessarily spoiling the same; and for those abuses, she had got angry; and at about 8.30 p.m. in the night, she left the house of her parents-in-law without informing them and with an intention to go to her mother's house; and while she was going by walk to Kovvur bus stand and reached the petrol bunk, 2 persons (A-1 and A-2) residing in sitaramapuram Colony came in front of her and asked her as to where she was going. Then, she told them that as her mother-in-law scolded her, she got angry for that and wanted to go to her mother's house at Jaggampeta of Kovvur, and therefore, with that intention, she was going to the bus stand. Then, both of them told her as to where she could go in that night and they would send her in the morning itself by bus and asked her to come along with them. Then, she told them that she would not come and that she would go to her mother's house. Then, A-1 and A-2 forcibly caught hold of her hand and took her into a thatched hut, which is in the fields of Duggiraju, at about 9.00 p.m. in the night. Then, they asked her to sleep with them. Then, she told them that she would not come and that she would go to her mother's house. Then, A-1 and A-2 forcibly caught hold of her hand and took her into a thatched hut, which is in the fields of Duggiraju, at about 9.00 p.m. in the night. Then, they asked her to sleep with them. When she told them that she won't sleep, A-2 undressed himself and forcibly made her to lay down supinely and lifted her petty coat and langa and forcibly ravished her. After some time, A-1 undressed himself and laid on her and ravished her and cohabitated her. Then, the time was about 10.00 p.m.. Waiting for some time, A-2 again raped her forcibly for the 2nd time and enjoyed her. After sometime, A-1 also enjoyed her for the second time. When that was happening, she raised alarm; and both of them threatened to kill her, if she shouted; and therefore, she did not shout. On 20-7-1991 in the early morning, A-1 went away leaving A-2 and herself in the thatched hut; and after sunrise, A-2 also went away stating .that he would go to the house and bring money and send her in the bus. After some time, while she was weeping in the thatched hut, her father-in-law (P.W.2), Apparao (P.W.3) and Veerabbayi (P.W.5) came into the thatched hut. When they questioned her as to why she was there, she told them the matter that had happened. They took her to her mother-in-law's house; and afterwards her people brought her to the Police Station, and when told the police, the police asked her to say what happened, and accordingly, she told and the same was recorded, which is Ex.P-1. On the said complaint, the Police registered a case Crime No.75j91 on 20-7-1991 at about 1.30 p.m. under Section 376 IPC and issued EX.P-9 FIR to all the concerned. The police examined the witnesses, sent her to the hospital for medical examination. They inspected the scene of offence and nothing was found at the scene of offence. They also arrested the accused and sent them for medical examination. After investigation was over, charge-sheet was filed against the accused. 3. The charge framed against A-1 and A-2 is that on 19-7-1991 at about 9.30 p.m., they committed rape on the said victim and thereby committed an offence punishable under Section 376 (2) (g) IPC. They also arrested the accused and sent them for medical examination. After investigation was over, charge-sheet was filed against the accused. 3. The charge framed against A-1 and A-2 is that on 19-7-1991 at about 9.30 p.m., they committed rape on the said victim and thereby committed an offence punishable under Section 376 (2) (g) IPC. The accused denied the said charge. 4. On behalf of the prosecution, 14 witnesses (P.Ws.1 to 14) were examined and 15 documents (Exs.P-1 to P-15) and M.Os. 1 to 5 were marked. On behalf of the defence, only Ex.D-1 was marked, but none was examined. After the evidence was over, the accused were examined to explain the circumstances appearing in the evidence against them and they denied the same. 5. P.W.1, the alleged victim, stated that she belongs to Kovvur and presently she has been living along with her parents at Jaggampeta of Kovvur; and she attained puberty one month prior to the incident in this case; and she was 14 years old by the time of the incident. On the date of the incident, she went to coolie work and returned to the house of her in-laws by evening. After her return, a quarrel occurred between herself and her mother-in-law. Then, she came out of the house and was proceeding to the bus stand of Kovvur to go to her parents house at Jaggampeta of Kovvur. Then, both the accused met her near the bus stand and asked her as to where she was going. Then, she told them that she was going to her parents' house. The accused are the friends of her husband and they used to come to her husband's house now and then, and hence, she knew them. They promised to take her to parents' house and took her to a thatched house situated in the fields of Duggiraju. After taking her to that place, both of them committed rape on her, First of all, A-2 undressed her and committed rape on her. Thereafter, A-1 committed rape on her in the similar manner. Both the accused were in that thatched house with her till 4.00 a.m.. First of all, A-1 went out of the thatched house stating that he would take her to her parents house on the next day morning, but A-1 did not come back. One hour later, A-2 also went away. Both the accused were in that thatched house with her till 4.00 a.m.. First of all, A-1 went out of the thatched house stating that he would take her to her parents house on the next day morning, but A-1 did not come back. One hour later, A-2 also went away. She stayed back in that thatched house. Then, her father-in-law and mother-in-law came to that place at about 6.00 a.m. and took her to the house, where she informed them as to what all happened during that night. Then, they took her to the police station and she gave a statement before the police and the police reduced it into writing an took her thumb impression on it. EX.P-1 is the said statement. They sent her to the Government Hospital for treatment from Kovvur to Kakinada. The police seized her langa (M.O.1), blouse (M.O.2) and Upper cloth (M.O.3). M.O.4 is her petty coat. In the cross-examination, she stated that her parents belong to Jaggampeta. She led marital life with her husband till the previous day before the incident in question. She left her in-laws' house on the date of the incident at about 8.30 p.m.. She had Rs.20/- with her at that time and she had also a bag containing her clothes with her at that time. There is a main road locally called as G.N.T. Road from her father-in-law's house to the bus stand and it is a busy road. She had not seen as to whether there are coffee hotels on either side of the road and rice mill and three petrol bunks by the side of the road. She stated that she was new to Kovvur by that time. The distance between petrol bunk and her in-laws' house is about one furlong and the accused met her in the road margin. She stated that she raised cries when the accused started dragging her and she did not notice as to whether many people were passing on the road at that time. When the accused met her, she told them that she did not have adequate money for going to her parents' house. She requested them to take her to her parents house. Her father-in-law told her that the accused informed them about her presence in the thatched house. When the accused met her, she told them that she did not have adequate money for going to her parents' house. She requested them to take her to her parents house. Her father-in-law told her that the accused informed them about her presence in the thatched house. As she did not know the way to her in-laws' house, she could not go away from the thatched house, though the accused went away from that place after leaving her there. She stated that she told the police that she was 18 years old at the time of incident. She does not know whether the accused have enmity with her father-in-law; and it is not true to say that as per the instructions of her father-in-law, she foisted the case against the accused. At the time of giving evidence, she came to Kovvur one day before. She stated that her house is far away from the scene of offence and it is not visible from her house. At about 6.00 a.m., her father-in-law and his brother came to the scene of offence and took her to the house by 9.00 or 9.30 a.m.; and at about 1.00 p.m., she went to the police station. 6. P.W.-2, the father-in-law of P.W.1, deposed that on the date of the incident, his wife asked P.W.1 to cook food for the night; and in that connection, a wordy quarrel took place between them; and thereafter, P.W.1 went away from his house by taking her clothes; and he was in the house at that time and thought that she would return after a few minutes. As she did not return back for a long time, he searched for her in the neighbouring houses, but he could not trace her during that night. On the next day by 6.00 a.m., through the mother of A-2 by name Simhachalam (P.W.8), he came to know that P.W.1 was in the thatched shed situated in the field of Duggiraju. Then, he went there along with P.Ws.5 and 3 and brought P.W.1 to his house, where she informed them as to what all happened in the night. Then, she was taken to the Police Station. He also stated that P.W.1 was 14 years old by the time of the incident; and her son had deserted her after that incident; and since then, she has been living in her parents' house. Then, she was taken to the Police Station. He also stated that P.W.1 was 14 years old by the time of the incident; and her son had deserted her after that incident; and since then, she has been living in her parents' house. In the cross-examination, he stated that P.W.1 left his house with a bag of clothes in his presence; and Seetharamapuram is the 1st Ward of Kovvur, where his house is situated; and Seetharamapuram is part and parcel of Kovvur: and the distance between Seetharamapuram and Kovvur is about one furlong; and the distance between his house and the thatched house of Duggiraju, where the incident is said to have taken place, is 1/2 kilometer. There are six houses separating his house and G.N.T. Road; and from G.N.T. Road, the thatched house of Peddiraju is visible. He denied that there are disputes between him and the accused in the village since a long time. He admitted that the accused persons were acting as mediators along with others to solve disputes between the villagers. 7. P.W.3, a relative and neighbour of P.W.2, stated that he came to know through the neighbours that P.W.1 was ravished and left in the thatched house of Duggiraju. Then, himself and P.W.5 went to the scene of offence. P.W.2 did not come along with them. When they went there and enquired P.W.1, she told them that both the accused ravished her in that night. They brought her to the village and handed over her to the elders of the village. In the cross-examination also, it is stated that P.W.2, the father-in-law of P.W.-l, went towards east, i.e., the parents' village of P.W.1, for searching her and P.W.2 did not follow them to the scene of offence on that day. He came to know that P.W.2 got the report given by P.W.1 to the police. He did not know if there was long standing enmity between the accused and P.W.2's family even prior to the incident. The thatched house in the scene of offence will be visible from the G.N.T. Road. 8. P.W.4, the wife of P.W.2, stated that P.W.1 is her daughter-in-law. He did not know if there was long standing enmity between the accused and P.W.2's family even prior to the incident. The thatched house in the scene of offence will be visible from the G.N.T. Road. 8. P.W.4, the wife of P.W.2, stated that P.W.1 is her daughter-in-law. On the date of the incident, she chastised her daughter-in-law (P.W.1) in connection with cooking of food; and when she went for fetching water, P.W.1 went away from the house by taking her clothes; and then, they searched and traced the girl (P.W.1) on the next day morning, when they came to know through P.W.8 the mother of A-2 that P.W.1 was in the thatched house situated in the filed of Duggiraju. 9. P.W.5, another close relation of P.W.2, stated that he came to know in the night of the date of incident that P.W.1 was missing and he along with P.Ws.2 and 3 and others searched for her in the night: and on the next day morning, he came to know through P.W.2 that P.W.1 was in the thatched shed of Duggiraju; and then, he along with P.Ws.2 and 3 went to the thatched shed and found her weeping there; and of enquiry, she told them that the accused ravished her in that night. In the cross-examination, he stated that there would be 100 to 200 people always in that locality of G.N.T. Road, where petrol bunk, rice mills, factory and half a dozen hotels are situated. Many lorries would be halted near the petrol bunk and always lights will be burning during the night in that locality. He further stated that even a small incident would attract the attention of about 100 people in that locality. By the date of incident, the accused were married men and were living with their wives; and on that day, A-1 also moved along with him upto 10.00 p.m. in search of P.W.1; and the G.N.T. Road is visible from the scene of offence; and if cries are raised in the scene of offence, they would be heard in the road. He denied that there are disputes on political side between their family and the accused family, due to which, they foisted the case against the accused. 10. P.W.6 was a mediator for recovery of clothes of the accused; and he was declared hostile. 11. He denied that there are disputes on political side between their family and the accused family, due to which, they foisted the case against the accused. 10. P.W.6 was a mediator for recovery of clothes of the accused; and he was declared hostile. 11. P.W.7 was another mediator for seizing M.O.5 lungi from A-2 under cover of Ex.P-3, and M.Os.1 to 4 clothes from P.W.1 under cover of EX.P-2. 12. P.W.8, the mother of A-2, was also declared hostile. She stated that there are political disputes between their family and the family of P.W.2. 13. P.W.9, the doctor, who examined P.W.1, stated that there are no injuries either external or internal on P.W.1; and she has given the final opinion that there might have occurred recent intercourse. 14. P.W.10, another doctor who examined the accused, stated that there are no injuries found on any parts of the accused. 15. P.W.11 is the S.I of Police, who investigated the case. 16. P.W.13 is the doctor, who examined P.W.1 and issued EX.P-15 certificate dated 8-8-2001 stating that on the general, physical, dental and radiological examination of P.W.1, he is of the opinion that she is aged about 15 years. 17. On the aforesaid evidence, the learned Assistant Sessions Judge held that the accused are guilty of the offence punishable under Section 376 (2) (g) IPC, and accordingly convicted and sentenced them. 18. The learned Counsel for the appellants submits that P.W.1 (victim) herself stated before the police in EX.P-1 statement that she was aged 18 years; and the doctor, who examined P.W.1, also stated in Ex.P-6 certificate that she was aged 18 years; and the police also proceeded on the footing that the alleged victim (P.W.1) was aged 18 years; and in the charge framed on 1-8-1995, it is stated thatP.W.1, on whom rape is alleged to have been committed, is 18 years old; and therefore, the statement of P.W.1 for the first time in the Court in her deposition stating that she was aged 14 years at the time of incident, and also the deposition of P.W.2 that P.W.1 was 14 years old at the time of the incident, cannot be believed. Even otherwise, the doctor (P.W.13), who examined the victim, gave EX.P-15 stating that P.W.1 was aged 15 years; and he further stated that the margin of error of six months could be given either side. Even otherwise, the doctor (P.W.13), who examined the victim, gave EX.P-15 stating that P.W.1 was aged 15 years; and he further stated that the margin of error of six months could be given either side. The learned Counsel for the appellants submits that the doctor's opinion is not final; and in support of his contention, he cited a judgment of the Apex Court in Jaya Mala v. Home Secy., Govt. of J & K. AIR 1982 SC P. 1297, wherein, it is stated that one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. In the instant case, even if one year margin is taken, then P.W.1 will be 16 years old; and therefore, I have no hesitation to hold that the victim (P.W.1) is not below 16 years but she is above 16 years old as on the date of the incident. Once it is held that P.W.1 is not below 16 years of age, the presumption under Section 114-A of the Evidence Act cannot be drawn holding that even though the sexual intercourse by the accused is with the consent of woman, it is no consent, if the victim woman is below 16 years of age. But, whereas in the instant case, on the oral evidence available on record, it is difficult to hold that the victim (P.W.1) is below 16 years of age; and therefore, no presumption can be drawn as contemplated under Section 114-A of the Evidence Act. 19. If P.W.1 is not below 16 years of age, then the further question that arises for consideration is as to whether the evidence of P.Ws.1 to 5 is truthful and inspires confidence of the Court to believe their version. P.Ws.1 to 5 are close relations As per the particulars given by P.W.1, she is also the resident of Kovvur residing at Jaggampeta. Her in-laws are also residents of Kovvur residing at Seetharampuram. No doubt, it is not on record as to what is the exact distance between the parents' house and the in-laws house. But, there is evidence to show that both the areas are situated in Kovvur alone. Therefore, it cannot be said that the house of her parents is far away from the house of P.W.2. According to the evidence of P.W.1, the accused are the friends of her husband. But, there is evidence to show that both the areas are situated in Kovvur alone. Therefore, it cannot be said that the house of her parents is far away from the house of P.W.2. According to the evidence of P.W.1, the accused are the friends of her husband. The police never made any attempt to cite the husband of P.W.1 as witness and he was not examined; and none of the persons from the side of the parents of P.W.1 have been examined. P.Ws.1 to 5 are close relations, and there is an allegation that there are disputes among the family of P.W.2 and the accused, and the accused were acting as mediators to settle the disputes in the village, and therefore, P.W.2 foisted a false case by using his daughter-in-law (P.W.1). 20. As per the evidence available on record, it is clear that the place, where the offence is said to have taken place, is very near the Grand Trunk Road and the said thatched shed is visible to the main road; and there are several hotels, rice mill, petrol bunk on either side of the said road; and lorries will be standing on the road; and any alarm made from the thatched shed can reach to the main road and several persons can hear the same. P.W.1 gave the complaint stating that in the thatched shed, A-1 raped her twice and A-2 raped here twice in the night against her will and consent forcibly. But, the police, who conducted the scene of panchanama, found nothing about the marks or any incriminating evidence is seen, there. Had P.W.1 resisted, there would have definitely been some injuries either external or internal on her body. As per the doctor's evidence, there are neither external nor internal injuries on her body. Except stating that there might be recent intercourse, there is nothing in the doctor's evidence to show that she was subjected to intercourse by force on the date of the incident. When there was any sexual intercourse by force for four times with P.W.1 by A-1 and A-2 in the same night, definitely there will be more signs of evidence on her vagina/private parts. When there was any sexual intercourse by force for four times with P.W.1 by A-1 and A-2 in the same night, definitely there will be more signs of evidence on her vagina/private parts. Apart from that, the doctor (P.W.9), who examined P.W.1, gave Ex.P-6 certificate, which shows that "uterus normal; no injuries are seen in vagina; spermatozoa seen on the clothes"; and on that basis alone, she opined that there might have occurred recent intercourse. As per the evidence of P.W.1, she was living with her husband. The accused were also examined by P.W.10, who issued EX.P-7 and Ex.P-8 (Accident Registers) stating that as per the chemical analysis report, no opinion could be given, as no spermatozoa is found on the clothes of the accused. The cumulative evidence available on record put together, shows that there is any amount of doubt to believe the version of the prosecution and the evidence of P.Ws.1 to 5. P.W.5, who is a close relation of P.W.2, stated that he is the son of P.W.2; and P.W.1 is his sister-in-law; and A-1 was with him in search of P.W.1 on that night upto 10.00 p.m.; which fact also clearly throws a serious doubt in the version of the prosecution. The evidence of P.Ws.1 to 5 does not inspire confidence or truthfulness, and therefore, there is an element of doubt that is visible on the face of evidence. 21. The learned Counsel for the appellants has placed reliance on the judgment of the Apex Court in Joseph v. State of Kerala 2000 SCC (Crl) P. 926, and it is profitable to extract Para 15 of the judgment, which reads as follows: "The charge under Section 376 IPC, is mainly fastened upon the appellant on the "last seen together" theory. The factum of rape of the deceased is sought to be proved from Ex.P-20, a report on examination of vaginal smear collected and said to confirm the presence of semen and spermatozoa, indicating that she should have had sexual intercourse before her death. Ex.P-21, chemical report, also showed that semen was detected on one of the underskirts found on the body of the deceased. Ex.P-8, certificate issued by P.W.15, the doctor, also showed that the accused-appellant was potent. But in the report, Ex.P-21, is was specifically stated that the dhoti of the appellant, subjected to chemical examination contained no stains of blood or semen. Ex.P-8, certificate issued by P.W.15, the doctor, also showed that the accused-appellant was potent. But in the report, Ex.P-21, is was specifically stated that the dhoti of the appellant, subjected to chemical examination contained no stains of blood or semen. If there had been any forcible sexual intercourse, the victim must have made some strong resistance being a grown-up lady and in the process, some injuries would have been found on the vaginal private parts of the body or some other parts indicative of any such use of force and it would be too much to assume that there would have been no injuries whatsoever on the body, on this account. Though injuries on the body is not always a must or sine qua non to prove a charge of rape, having regard to the case of the prosecution that the victim had been subjected to brutal rape and forced sexual intercourse, this aspect of the matter cannot be completely lost sight of. The deceased was stated to be of about 26 years of age, when she died and she is the sister of the wife of the appellant. It is not as though they were shown earlier to been inimical terms. Any thing possible might have happened and the facts found proved do not irresistibly lead to the only conclusion of the guilt of the appellant in respect of an offence under Section 376 IPC. Consequently, we are prepared to give the offence under Section 376 IPC, and the conviction recorded and sentence imposed by the High Court upon the appellant on this account is set aside." In the instant case also, except noticing the spermatozoa on the clothes of P.W.1, no external or internal injuries are found on P.W.1 and nothing has been found on the clothes of the accused. There was no semen or blood on the clothes of the accused persons. Even on the clothes of P.W.1, there was no bold, except spermatozoa, seen on her clothes. Had the sexual intercourse by the accused for four times taken place, there would have definitely seen some injuries on her vaginal any private parts, if the rapists forced sexual intercourse. There was no semen or blood on the clothes of the accused persons. Even on the clothes of P.W.1, there was no bold, except spermatozoa, seen on her clothes. Had the sexual intercourse by the accused for four times taken place, there would have definitely seen some injuries on her vaginal any private parts, if the rapists forced sexual intercourse. Therefore, I am inclined to give benefit of doubt to the appellants; and accordingly they are acquitted of the offence under Section 376 (2)(g) IPC; and the conviction recorded and the sentence imposed on them by the learned Assistant Sessions Judge, Kovvur are set aside. The fine, if any paid by the appellants, may be refunded to them. The bail bounds executed by the appellants shall stand discharged. The appellants shall be set at liberty forthwith, if not required in any other case. The criminal appeal is accordingly allowed.