P. S. NARAYANA, J. ( 1 ) HEARD Sri C. Praveen Kumar, Counsel representing the appellants-A-1 and A-2 and sri Mohd. Osman Shaheed, Additional public Prosecutor. ( 2 ) SRI C. Praveen Kumar, the learned counsel representing the appellants-A-1 and a-2 had pointed out the evidence of P. W. 1 and suggestions to P. W. 1, the nature of the character and conduct of P. W. 1 the evidence of P. Ws. 2 and 3, and also the inconsistencies in the said evidence. The learned Counsel also had drawn the attention of this Court to M. O. 1 (a) and m. O. 1 (b) ear studs, and its doubtful recovery. The learned Counsel also had pointed out the evidence of P. W. 12, and also would contend that in the light of the nature of the evidence, the version of the prosecution itself is doubtful since just adjacent to the path way on which normally, the public will be passing through, it is highly improbable that the incident would have happened at the alleged scene of offence. The learned Counsel would conclude that in the light of these inherent improbabilities in the version of the prosecution, an acquittal may have to be recorded. ( 3 ) ON the contrary, the learned Additional public Prosecutor had taken this court through the evidence of P. Ws. 1 to 15 and exs. P-1 to P-14 and would contend that Exs. D-1 to D-3-relevant portions in the 161 Cr. P. C. statements of P. Ws. 3 to 5 respectively are not of such material contradictions so as to discredit their testimony and the evidence of P. W. 1 is clear and categorical and well supported by the other evidence and also corroborated by the medical evidence, and hence, the prosecution proved the case beyond all reasonable doubt. Therefore, the said findings are to be confirmed and the conviction and the sentence also may have to be confirmed. ( 4 ) THE Inspector of Police, Law and order, VI Circle, Harbour Visakhapatnam city, laid the charge sheet against A-1 and a-2 for the offences under Secs. 376 (g) and 394 IPC. Therefore, the said findings are to be confirmed and the conviction and the sentence also may have to be confirmed. ( 4 ) THE Inspector of Police, Law and order, VI Circle, Harbour Visakhapatnam city, laid the charge sheet against A-1 and a-2 for the offences under Secs. 376 (g) and 394 IPC. The same was registered by the VII Metropolitan Magistrate, visakhapatnam, as P. R. C. No. 5 of 1997 and the same was committed to the Court of session, and the Court of Session, ultimately, made over the same to the sessions Judge, Mahila Court, visakhapatnam. ( 5 ) THE learned Judge, recorded the evidence of P. Ws. 1 to 15 and marked exs. P-1 to P-14, Exs. D-1 to D-3 and m. Os. 1 to 14, and on appreciation of the evidence available on record, came to the conclusion that the accused are liable to be punished under Section 392 IPC and not under Section 394 IPC, and A-1 and A-2 were also found guilty for an offence under sec. 376 (g) IPC and they were sentenced to undergo Rigorous Imprisonment for a period of two years each and also to pay a fine of rs. 1,000/- in default, to undergo Simple imprisonment for a period of two months each; and ten years each and also to pay a fine of Rs. 2,000/- in default, to undergo simple Imprisonment for a period of three months each; and both the sentences to run concurrently. Hence, the Criminal Appeal. ( 6 ) (I) The case of the prosecution is that a-1 and A-2 are the residents of rayavarapuvanipalem village and rajayyapeta respectively. A-1 is a lorry cleaner and A-2 is a pool worker in visakhapatnam port. P. W. 1 Joga appalakonda is the wife of Atchibabu (P. W. 9) and a resident of Gurrampalem village of Pendurthy Mandal. On 10-04-1996, P. W. 1 and her son P. W. 2 appalaraju, aged about 7 years, who went to the paternal village of P. W. 1 i. e. , Kommadi, got down the bus at Rendurthy bus stand, at 12. 00 noon and as there were no buses plying from Pendurthy to their village at that time, herself and her son started to walk from Pendurthy to their village. While they were passing through the pathway abutting the casuarina tope which is at a distance of about one furlong from Gurrampalem. 00 noon and as there were no buses plying from Pendurthy to their village at that time, herself and her son started to walk from Pendurthy to their village. While they were passing through the pathway abutting the casuarina tope which is at a distance of about one furlong from Gurrampalem. A-1-Atchibabu and A-2-Nookaraju, who are the residents of nearby villages, but strangers to p. W. 1 approached her, gagged her mouth and dragged her into the casuarina tope. While A-2 was holding her both hands, firstly, A-1 committed rape on her, and thereafter, A-2 committed rape on her, while a-1 was holding her hands. A-1 has taken away her both ear studs forcibly and thereby, she sustained bleeding injury. A-2 has taken away the amount of Rs. 500/- from her. While A-1 and A-2 were dragging her into the casuarina tope, the son of P. W. 1, who was standing on the path way raised cries. One Chittemma-P. W. 3, a resident of gurrampalem village while returning home from Pendurthy, after taking treatment for her illness, through the above said passage, found Appalaraju P. W. 2 aged about 7 years, and questioned him as to what had happened. He informed her that two male persons beat him and dragged his mother into casuarina tope. Then, she went inside the casuarinas tope and found A-2 lying on appalakonda P. W. 1 and A-1 catching hold of her both hands, and on seeing her, both the accused, who were known to her, being the residents of neighbouring villages ran away from that place. P. W. 1 became unconscious and her clothes were drenched with blood came out from her private parts due to the rape committed by A-1 and A-2 on her. Then, P. W. 3 took her and her son p. W. 2 to her house and after some time, p. W. 1 regained her conscious. When p. W. 3 enquired P. W. 1, she informed that a-1 and A-2 committed rape on her. They informed about the incident to their villagers p. Ws. 4 to 8 and P. W. 9 husband of P. W. 1. Then all of them went to the house of A-1 to question him about the commission of rape on P. W. 1. A-1 denied the same. They informed about the incident to their villagers p. Ws. 4 to 8 and P. W. 9 husband of P. W. 1. Then all of them went to the house of A-1 to question him about the commission of rape on P. W. 1. A-1 denied the same. But P. W. 3 insisted him in the presence of his parents to admit the same as she has seen while A-1 and A-2 were committing rape on P. W. 1. In spite of that, he did not choose to agree the commission of the offence. Then, they went to the house of A-2, but he was not available at his house. Then, all of them decided to give a report to the police. (II) P. W. 1 gave a report to P. W. 15 and basing on the report a case in Crime No. 44 of 1996 was registered for the offences under Sections 376 (g) and 394 IPC and issued Ex. P-13-FIR. P. W. 12 received the requisition from the casualty medical officer to examine P. W. 1 accompanied by her mother-in-law and woman constable. Though P. W. 1 was conscious and mentally sound, she was not in a position to talk properly. Hence, her mother-in-law stated to p. W. 12 that two known persons committed rape on P. W. 1 on 10-04-1996 at 13. 00 hours. On examination of private parts of p. W. 1. She made entries in the questioneer of investigation of sexual offences i. e. , ex. P-6 and issued Ex. P-5-wound certificate. She collected the cloth piece of the saree of p. W. 1 stained with blood i. e. , old stains and also the other specimens collected from p. W. 1 and sent them to Forensic Science laboratory for chemical examination. After receiving the chemical analysis report- ex. P-7, final opinion was given that there are signs of recent sexual intercourse on P. W. 1. (III) P. W. 14 is the Inspector of Police, who had taken the case file from P. W. 15, recorded the statements of certain witnesses. On 11-04-1996 at 8. 00 a. m. , p. W. 14 visited the scene of offence along with P. W. 15 and inspected the scene of offence in the presence of the mediators and prepared a rough sketch of scene of offence (Ex. On 11-04-1996 at 8. 00 a. m. , p. W. 14 visited the scene of offence along with P. W. 15 and inspected the scene of offence in the presence of the mediators and prepared a rough sketch of scene of offence (Ex. P-11) and got the scene of offence photographed by a photographer along with their respective negatives. He also prepared an observation report (Ex. P-3) with regard to the scene of offence and the above said mediator signed on it. He seized a pair of hawai chappals (M. O. 10 ). He also collected the blood cloth on the fallen leaves of casuarina plant, and M. O. 11 pieces of wooden stick from the scene of offence. He sent the above said material objects for chemical examination. He recorded the statement of photographer (P. W. 10) under section 161 Cr. P. C. While P. W. 14 was at the scene of offence, he received a reliable information with regard to the presence of the accused at Akkayyapalem, and he immediately rushed there along with the said mediators and the then Sub-Inspector of police (P. W. 15) at about 11. 30 a. m. found a-1 and A-2 there, and the mediators identified them as that of A-1 and A-2. P. W. 14 checked the shirt pocket of A-1 and found two hundred rupee notes (M. O. 12) and gold ear stud without having back screw. M. O. 1 (a ). He also checked the pocket of A-2 and found in the shirt pocket three fifty rupee notes (M. O. 13) and a gold ear stud having a screw on its back (M. O. 1 (b)) in a similar design and recovered them from A-1 and A-2. He noted the numbers of the denomination recovered from A-1 and a-2 in the seizure report Ex. P-14. Both the accused confessed their guilt before the mediators regarding the commission of rape on P. W. 1. In pursuance of the confessional statements, they followed A-1 to his house and he went inside his house and brought his clothes i. e. , half pant (M. O. 5), shirt (M. O. 6) and lungi (M. O. 14) and informed that he wore the said clothes at the time of the alleged offence. He prepared the seizure report (Ex. In pursuance of the confessional statements, they followed A-1 to his house and he went inside his house and brought his clothes i. e. , half pant (M. O. 5), shirt (M. O. 6) and lungi (M. O. 14) and informed that he wore the said clothes at the time of the alleged offence. He prepared the seizure report (Ex. P-3) with regard to the above said clothes in the presence of mediators and they signed on the said report. At 2. 30 p. m. in pursuance of statement given by A-2, they followed A-2 and he went inside the house and brought his clothes i. e. , one yellow colour cut drawer (M. O. 8), shirt (M. O. 7) and a towel (M. O. 9 ). He seized the above said clothes from A-2 under the seizure report (Ex. P-4 ). (IV) It is also the version of the prosecution that P. W. 14 returned to the police station along with A-1 and A-2 at about 4. 00 p. m. , and sent the accused for medical examination. P. W. 13 examined a-1 and A-2 and issued Exs. P-9 and P-10 respectively. After completing the investigation, after receipt of chemical examination report, and after collecting wound certificates, the charge sheet was filed. ( 7 ) THE version of the prosecution is that while P. W. 1 and her son-P. W. 2 were passing through the casuarina tope situate near Gurrampalem, both the accused approached her, gagged her mouth and dragged her into the casuarinas tope and committed gang rape on her. When P. W. 2 was standing on the passage situate near the scene of offence. P. W. 3 Chittemma, who was coming to Gurrampalem from pendurthi, saw P. W. 2 and questioned him as to why he was standing there, then, he informed her that two persons dragged his mother into the casuarina tope. Then, she went inside the casuarina tope and found a-2-Nookaraju tying on P. W. 1 while A-1-Atchibabu was catching hold of her hands and on seeing her, both the accused, who were known to her ran away from that place. ( 8 ) P. W. 1 deposed in her evidence in detail as to what had happened on the fateful day. ( 8 ) P. W. 1 deposed in her evidence in detail as to what had happened on the fateful day. P. W. 1 deposed that about 2 years 3 months ago about 12 noon, she along with her son-Appalaraju (P. W. 2) got down the bus at Pendurthi bus stand and as there were no buses plying from Pendurthi to their village at that time, they started to walk from pendurthy to their village, and while they were passing through the casuarina tope, and while she was collecting the fire wood in the said casuarina tope, her son was standing at a distance of about 2 or 3 yards from her, A-1, who is fair in complexion, gagged her mouth with towel and dragged her into the casuarina tope by catching hold of her waist, and committed rape on her. She also deposed that both the accused approached her and both of them dragged her into the casuarina tope and A-1 committed rape, when A-2 was holding her hands, and while A-1 was holding her hands, a-2 also committed rape on her. She also deposed that A-1 had taken away her gold ear studs from her right ear forcibly and thereby, her ear where she put her ear stud was split into two parts. Her son witnessed the incident. She also further deposed that Chittemma (P. W. 3) resident of gurrampalem village, who was coming through that way, came there and her son informed her about P. W. 1 being dragged to casuarinas tope. This witness deposed that she became unconscious after the commission of the rape. She had deposed about all the other efforts in details. In the cross-examination of P. W. 1, nothing serious had been elicited, except suggesting that she is having illicit contacts with several people. ( 9 ) P. W. 2 though a child witness, in substance, had supported the evidence of p. W. 1. The discrepancies pointed out in the evidence of the child witness are not serious discrepancies. ( 10 ) THE evidence of P. W. 3 would corroborate the evidence of P. W. 1 in all particulars. This witness was cross- examined at length. But her testimony could not be shattered. ( 11 ) ON appreciation of the evidence of p. Ws. 1 to 3, findings in detail had been recorded by the learned Judge. ( 10 ) THE evidence of P. W. 3 would corroborate the evidence of P. W. 1 in all particulars. This witness was cross- examined at length. But her testimony could not be shattered. ( 11 ) ON appreciation of the evidence of p. Ws. 1 to 3, findings in detail had been recorded by the learned Judge. ( 12 ) P. W. 4 was examined and he deposed about the incident and what had happened subsequent thereto. P. W. 5 also had deposed the same. P. W. 6 also specifically deposed that since the incident was informed, all of them decided to go to the house of A-1, to question him with regard to the commission of the offence and questioned him. ( 13 ) P. W. 7 also deposed that all of them went to the house of A-1 and questioned him, but however, he denied and informed that A-2 committed rape on her. P. W. 8 also had deposed that all of them went to the house of A-1 and questioned him about the incident, and he denied the commission of the said offence, and then, Chittemma told a-1 that he is the culprit who committed rape on P. W. 1 and ran away from that place, and a-1 also informed that A-2 committed rape. P. W. 9 also had deposed the same. ( 14 ) THUS, the other evidence available on record is in relation to the post incident events. P. W. 10 is the photographer. Ex. P-10 is the photograph along with the respective negatives of the scene of offence. P. W. 11 deposed about Ex. P-4-observation report and also further deposed that the police took him to the scene of offence and they found A-1 and A-2 at that place and also police asked him (P. W. 11) whether the said persons are the accused and that he identified them as A-1 and A-2, and the police inspected the shirt and pant pockets of A-1 and A-2 and found two hundred rupee notes and a gold ear stud in A-1 s shirt pocket, and they found three fifty rupee notes, and a ear stud from the shirt pocket of a-2 and he cannot identify whether the denomination shown to him are that of the denominations seized from A-1 and A-2 and cannot identify the ear studs also. This witness also deposed about M. Os. This witness also deposed about M. Os. 5 to m. O. 9 and also deposed about Exs. P-3 and p-4 in relation to the seizure of M. O. 2. ( 15 ) P. W. 12 is the Professor in gynecology and she deposed about Ex. P-5. This witness also deposed that she received F. S. L. report (Ex. P-7) with regard to the chemical examination of the material objects and basing on the F. S. L. report, she gave her final opinion (Ex. P-8) that there is evidence of signs of recent sexual intercourse on the alleged victim-P. W. 1. ( 16 ) P. W. 13 is the Assistant Professor of anesthesia and he had examined the accused and deposed about Exs. P-9 and p-10. ( 17 ) P. W. 14-lnspector of Police deposed about the details of the investigation. ( 18 ) ON the strength of the evidence, the learned Judge recorded the findings in detail and had arrived at a conclusion that exs. D-1 to D-3 are not of such material contradictions so as to discredit the evidence of P. Ws. 3 to 5. Even otherwise, the evidence of P. Ws. 1 to 3 is more clear and categorical, and the evidence of P. Ws. 4 and 5 at the best would relate to what actually happened subsequently. ( 19 ) IN the light of the evidence of P. Ws. 1 to 15 and also Exs. P-1 to P-14, there cannot be any doubt that the prosecution had established the guilt of the accused for the offences under Sections 376 (g) and 392 ipc. Hence, the findings recorded by the learned Judge and the conviction are hereby confirmed. But however taking into consideration, the age of A-1 and the family circumstances of A-2, that he has to maintain his wife and children, it is just, if the sentence is modified. ( 20 ) IN the result, the conviction imposed by the learned Sessions Judge, Mahila courts, Visakhapatnam, in Sessions Case no. 23 of 1997 against the appellants-A-1 and A-2 on 08-03-1999, for the offences punishable under Sections 376 (g) and 392 ipc is confirmed. ( 20 ) IN the result, the conviction imposed by the learned Sessions Judge, Mahila courts, Visakhapatnam, in Sessions Case no. 23 of 1997 against the appellants-A-1 and A-2 on 08-03-1999, for the offences punishable under Sections 376 (g) and 392 ipc is confirmed. But however, the sentence awarded against them is modified as follows the sentence imposed against the appellants-A-1 and A-2 for the offence under section 376 (g) IPC, to undergo Rigorous imprisonment for a period of ten years each, is reduced to five years, and however, the imposition of fine amount of Rs. 2,000/- in default, to undergo Simple Imprisonment for a period of three months each is hereby confirmed; and the sentence imposed against the appellants-A-1 and A-2 for the offence under Section 392 IPC, to undergo rigorous Imprisonment for a period of two years each, and also the imposition of fine amount of Rs. 1,000/- in default, to undergo simple imprisonment for a period of two months each is hereby confirmed. Both the above sentences shall run concurrently. The bail bonds of the appellants-A-1 and a-2 shall stand cancelled. It is needless to say that the appellants-A-1 and A-2 shall serve the rest of the sentence and they are entitled to set off in accordance with law. Except the above modification of sentence referred to supra, in all other respects, the findings are hereby confirmed. Accordingly, the Criminal Appeal shall stand dismissed.