B. SESHASAYANA REDDY, J. ( 1 ) THIS criminal appeal has been preferred by the accused against the judgment dated 31-12-1998 passed by the learned Assistant Sessions Judge, bhimavaram in S. C. No. 240 of 1996, by which the learned Assistant Sessions Judge convicted A1-Vaddi Srinivasa Rao for the offences under Sections 376 IPC and 342 ipc and A2 for the offence under Section 342 ipc and sentenced A1 to suffer rigorous imprisonment for seven years and pay a fine of Rs. 500/- in default to suffer simple imprisonment for one month for the offence under Section 376 IPC and simple imprisonment for six months for the offence under Section 342 IPC; and A2 to suffer simple imprisonment for six months for the offence under Section 342 IPC. However, the learned Assistant Sessions judge found A1 not guilty for the offence under Section 506 (ii) IPC and A2 not guilty for the offence under Section 376 IPC read with 109 IPC and acquitted them accordingly. ( 2 ) THE appellants are A1 and A2 in s. C. No. 240 of 1996. They were put on trial before the Assistant Sessions Judge, bhimavaram, for the offences under sections 342, 376, 109 read with 376 and 506 (ii) of IPC. ( 3 ) THE case of the prosecution in brief is that P. W. 1-Abbisetti Kanakadurga is daughter of P. W. 2-Abbisetti Satyanarayana and P. W. 3-Abbisetti Padmavathi. She was aged about 15 years by the date of incident, being her date of birth 10-6-1980. In the year 1995 she was a student of 10th Class in the Z. P. High School, China kapavaram. Since three days prior to 3. 11. 1995 she did not go to school due to ill-health of her parents. She was attending on her ailing parents during the said period. A1 and A2 are brother and sister and they are children of one Bhushan Rao. A2 was married and mother of two children (one son and daughter) by the date of the incident. Her in-laws house is 300 yards away from her parents house. The house of Bhushan rao and the house of P. Ws. 2 and 3 are opposite to each other and they are situated under one roof. Indeed there are four portions in the house bearing Door no. Her in-laws house is 300 yards away from her parents house. The house of Bhushan rao and the house of P. Ws. 2 and 3 are opposite to each other and they are situated under one roof. Indeed there are four portions in the house bearing Door no. 1-94, which faces towards west Northern portion belongs to P. W. 2 and whereas southern portion belongs to Bhushan Rao, father of the accused. Towards west of the house, a street runs from the north to south known as Ramalayam Street. It is said that bhushan Rao was out of country at the relevant time. On 3. 11. 1995 while P. W. 1 was standing on the payal of her portion, A2 called her to the portion of her parental house. P. W. 1 obliged A2 and went there. Thereupon, A2 closed her mouth and took her into a room where A1 was present. It is alleged that A1 thrusted some cloth into her mouth and tied her hands with a towel. Thereafter A2 went out the room and closed the door from outside. Then A1 removed her langa and ravished her against her will. He put her under threat of killing her parents and made her to write on a paper as "priyathi Priyamaina Sreenuki. Neevu madrasu nundi nakosam vachevu. Nenu marala Sukravaram nee kosam vastanu etc. " p. W. 1 got herself released from the clutches of A1 and came out of the room and saw A2 laughing at her. She came to her portion, changed her dress, had bath and laid on a bed. She got fever on the next day. Her mother-P. W. 3 enquired and thereupon she busted out detailing the incident occurred in the portion of the accused on the previous day. P. W. 3 in turn informed her husband- p. W. 2 who telephoned to P. W. 6. Thereafter on the advise of P. W. 6, P. W. 1 drafted ex. P. 1 report and presented the same before sho, Akiveedu Police Station. P. W. 12 ch. Murali Krishna, SI of Police, received ex. P. 1 report and registered a case in Crime no. 99 of 1995 under Sections 342, 376, 109 read with 376 and 506 (ii) of IPC and issued ex. P. 10 FIR. He examined P. W. 1 and recorded her statement and sent her to government Hospital, Bhimavaram. P. W. 12 ch. Murali Krishna, SI of Police, received ex. P. 1 report and registered a case in Crime no. 99 of 1995 under Sections 342, 376, 109 read with 376 and 506 (ii) of IPC and issued ex. P. 10 FIR. He examined P. W. 1 and recorded her statement and sent her to government Hospital, Bhimavaram. P. W. 1 1 dr. P. Sylaja, Civil Assistant Surgeon, District headquarters Hospital, Eluru medically examined P. W. 1 on 5. 11. 1995 and issued ex. P. 9 wound certificate. On receipt of FSL report she opined that P. W. 1 was subjected to intercourse. She determined the age of p. W. 1 as 16 years basing on the radiologist report. P. W. 13 B. Basava Punnaiah, CI of police, took up investigation, visited the scene of offence, drafted observation report in the presence of P. Ws. 7 and 8 and effected seizure of MOs. 3 towel and MO. 4 cloth piece under the cover of Ex. P. 3 panchanama. He also prepared rough sketch of the scene, which has been exhibited as Ex. P. 11. He effected arrest of A1, seized his clothes (MO. 5 kincker and MO6. shirt) and sent him for medical examination. P. W. 10 Dr. K. Sita Ramaraju, deputy Civil Surgeon, Government Hospital, bhimavaram, medically examined A1 and issued Ex. P. 6 certificate opining that there is nothing suggestive of A1 not capable of performing sex. After receipt of Ex. P7 FSL report, he issued Ex. P. 8 final opinion on 4-6-1986. P. W. 13 secured Ex. P. 5 certificate from the Head Master of the School where p. W. 1 studied with regard to her date of birth. He sent material objects to RFSL, vijayawada and on receipt of the FSL report and after completing the investigation, he submitted a charge-sheet before the ii Additional JFCM, Bhimavaram. The learned magistrate took the charge-sheet on file as p. R. C. No. 16 of 1996 and committed the case to Sessions Division, West Godavari at eluru, as the offence under Section 376 IPC is exclusively triable by a Court of Session. The learned Sessions Judge took the case on file as S. C. No. 240 of 1996 and made over the same to the Court of Assistant Sessions judge, Bhimavaram, for disposal according to law. The learned Sessions Judge took the case on file as S. C. No. 240 of 1996 and made over the same to the Court of Assistant Sessions judge, Bhimavaram, for disposal according to law. The learned Assistant Sessions Judge, on hearing the prosecution and the accused, framed the following charges: (1) Against A1 and A2 for the offence punishable under Section 342 IPC (2) Against A1 for the offence punishable under Section 376 IPC (3) Against A2 for the offence punishable under Section 109 read with 376 IPC (4) Against A1 for the offence punishable under Section 506 (ii) IPC. He read over and explained the charges to the accused, for which the accused pleaded not guilty and claimed to be tried. To bring home the guilt of the accused for the offences with which they stood charged, the prosecution examined 13 witnesses and proved 11 documents and exhibited six material objects. The accused examined one witness and marked eight documents on their behalf. The learned Assistant Sessions Judge, on appreciation of the evidence brought on record and on hearing the prosecution and the accused, found A1 guilty for the offence under Sections 376 and 342 IPC and A2 guilty for the offence under Section 342 IPC and convicted them accordingly and sentenced them as detailed above. However, the learned Assistant Sessions Judge found a1 not guilty for the offence under Section 506 (ii) IPC and A2 not guilty for the offence under Section 376 read with 109 IPC and acquitted them accordingly. Assailing the judgment of conviction and sentence, the accused have filed this criminal appeal. ( 4 ) LEARNED Counsel appearing for the appellants/accused submits that there is no consistency in the evidence of P. W. 1 and thus no implict reliance can be placed on her testimony. In elaborating his arguments he submits that the absence of injuries on the person of P. W. 1 in an incident occurred in a dilapidated portion of the house falsifies the story narrated by her. The scene of offence situates abetting the road and any incident, as alleged by P. W. 1 had occurred, it would have definitely drawn the attention of the passers-by. The prosecution had not examined any person residing nearby the scene to speak of the occurrence of the allegedly incident. The scene of offence situates abetting the road and any incident, as alleged by P. W. 1 had occurred, it would have definitely drawn the attention of the passers-by. The prosecution had not examined any person residing nearby the scene to speak of the occurrence of the allegedly incident. His further submission is non-production of the letter allegedly secured by the accused from P. W. 1 putting her under threat is fatal to the prosecution and that itself is sufficient to discredit the version of p. W. 1. In support of his submissions he placed reliance on the decision of Rajasthan high Court in Hurji v. State of Rajasthan, 2002 Crl. LJ 472, wherein it has been held that the absence of injury on the person of the victim causes to show that she did not resist and it was a case of tacit consent. ( 5 ) PER contra, learned Additional public Prosecutor submits that the testimony of the victim-P. W. 1 is fully corroborated by the medical evidence and therefore the trial Court is justified in placing implicit reliance on the evidence of P. W. 1. He would also submit that non-production of the letter allegedly secured by the accused by putting P. W. 1 under threat is not fatal to the case of the prosecution. ( 6 ) IT is contended by the learned counsel appearing for the appellants/accused that there is enough material to show that the victim was of consenting age and that it was a case of tacit consent and not a rape. ( 7 ) THE prosecution examined 13 witnesses and proved 11 documents and exhibited six material objects to bring home the guilt of the appellants/accused for the offences with which tney stood charged. P. W. 1 is the victim. P. W. 2 and P. W. 3 are the parents of the victim. P. W. 4 is the cousin of P. W. 3. P. W. 5 is resident of Chinnakapavaram. He deposed before the Court basing on the information given to him by P. W. 1. P. W. 6 is cousin of P. W. 2, he speaks of P. W. 1 presenting a report before SHO, Akividu police Station on 4. 11. 1995. P. W. 7 and p. W. 8 are panch witnesses for observation of the scene of offence and seizure of clothes of P. W. 1 as well as A1. P. W. 6 is cousin of P. W. 2, he speaks of P. W. 1 presenting a report before SHO, Akividu police Station on 4. 11. 1995. P. W. 7 and p. W. 8 are panch witnesses for observation of the scene of offence and seizure of clothes of P. W. 1 as well as A1. P. W. 9 was the Head Master in Z. P. High School, chinnakapavaram from 1992-96. He issued ex. P. 5 certificate regarding the date of birth of P. W. 1 basing on the entries in the school records. P. W. 10 is the Doctor who medically examined A1 and issued Ex. P. 6 certificate and Ex. P. 8 final opinion. P. W. 11 is the doctor who medically examined the victim- p. W. 1 and issued Ex. P. 9 wound certificate. P. W. 12 and P. W. 13 are the IO. ( 8 ) OF the witnesses examined on behalf of the prosecution, P. W. 4 and P. W. 5 stated that they were informed of the incident by P. W. 1. But P. W. 1 did not speak of her informing the incident to P. W. 4 and p. W. 5. Even P. W. 4 and P. W. 5 also omitted to state before the police that P. W. 1 informed them of the incident. The accused got this omission confirmed through the investigating Officer (P. W. 13 ). For better appreciation I may refer the relevant portion of the cross-examination of P. W. 13 and it is thus:"p. W. 4 stated before me that he came to know about the offence P. W. 4 did not state before me that he was informed by P. W. 1. P. W. 5 stated before me that she came to know about the offence and P. W. 1 did not inform her about the offence. "the version of P. W. 4 and P. W. 5 before the court that the incident was informed to them by P. W. 1 is an improvement over their police statement. This improvement is on a vital aspect and therefore it is liable to be excluded from consideration. ( 9 ) THE entire case rests on the solitary testimony of P. W. 1 who is the victim. The evidence of the prosecutrix in a rape case is to be given due weight. This improvement is on a vital aspect and therefore it is liable to be excluded from consideration. ( 9 ) THE entire case rests on the solitary testimony of P. W. 1 who is the victim. The evidence of the prosecutrix in a rape case is to be given due weight. Sexual violence is a dehumanizing act and it is an unlawful encroachment into the right to privacy and sanctity of a woman. The Courts also should be strict and vigilant to protect society from such evils. It is in the interest of the society that serious crimes like rape should be effectively investigated. It is equally important that there must be fairness to all sides. In a criminal case, the Court has to consider the triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family and the public. The purpose of criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. The sole testimony of the victim of a sexual offence can be a basis for conviction provided it is safe, reliable and worthy of acceptance. This Court had occasion, in many cases, to consider the nature of evidence required when the conviction was mainly based on the testimony of the victim of a sexual offence. ( 10 ) IT is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case there is an injury on the physical form while in the former it is both physical as well as psychological and emotional. However, if the course of facts finds it difficult to accept the version of the prosecutrix on its face value it may search for evidence direct or circumstantial which could lend assurance to her testimony vide the decision of Supreme Court in State of rajasthan v. N. K. , 2000 SCC (Crl.) 898. ( 11 ) IT is well settled that in rape cases the conviction can be solely based on the evidence of the victim, provided such evidence inspires confidence in the mind of the Court. ( 11 ) IT is well settled that in rape cases the conviction can be solely based on the evidence of the victim, provided such evidence inspires confidence in the mind of the Court. The victim is not treated as an accomplice, but could only be characterized as injured witness. It is also reasonable to assume that no woman would falsely implicate a person in a sexual offence as the honour and prestige of that woman also would be at stake. However, the evidence of the prosecution shall be cogent and convincing and if there is any supporting material likely to be available, then the rule of prudence requires that evidence of the victim may be supported by such corroborative material vide the decision of the Supreme Court in Sudhansu Sekhar sahoo v. State of Orissa, 2003 (1) ALD (Crl.) 360 (AP) = (2002) 10 SCC 743 . ( 12 ) SECTION 375 of IPC defines "rape" and it reads as under: 375. Rape: A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: firstly: Against her will. Secondly: Without her consent. Thirdly: With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly: With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly: With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly: With or without her consent, when she is under sixteen years of age. Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception: Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. Sixthly: With or without her consent, when she is under sixteen years of age. Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception: Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. ( 13 ) LET me first consider the evidence placed on record as to the age of P. W. 1, rather it is to be seen whether P. W. 1 was under or above 16 years of age by the late of incident. It is the version of the prosecution that P. W. 1 was under 16 years of age as on the date of the incident. The prosecution examined P. W. 9 and marked ex. P5 certificate issued by him to the effect that the date of birth of P. W. 1 as eltered in the school record is 10-6-1980 and in which case P. W. 1 would be aged about 15 years as on the date of the incident. P. W. 9 was the Head Master of zilla Parishad High School, Chinnakapavaram from 1992-96. He issued Ex. P. 5 certificate basing on the school records. What records he verified before issuing Ex. P. 5 certificate have not been detailed by him in the evidence. It is admitted by him in the cross-examination that he did not enter the date of birth of P. W. 1 in the school records during his tenure as Head Master. It is not the case of P. W. 2, the father of P. W. 1 that he had given declaration to the Head master while admitting his daughter-P. W. 1 in the school. Indeed in the printed FIR which has been exhibited as Ex. P. 10, the age of the victim (P. W. 1) was shown as 17 years. P. W. 11 Dr. P. Sailaja medically examined P. W. 1 and opined that she was aged above 16 years. Her opinion was based on the report of Radiologist. For better appreciation, I may refer the cross- examination of P. W. 11 and it is thus:"i have deposed in quite number of rape cases. Basing on the records only I used to depose in the Court. In the documents there is no opinion given to the effect that the intercourse is occurred. For better appreciation, I may refer the cross- examination of P. W. 11 and it is thus:"i have deposed in quite number of rape cases. Basing on the records only I used to depose in the Court. In the documents there is no opinion given to the effect that the intercourse is occurred. Because the final opinion is not available in records I have given my opinion in the Court for the first time. I know that intercourse is occurred. It is not true to suggest that I did not give any certificate because I know that the intercourse is not at all there. It is not true to suggest that no injuries are mentioned in the certificate. It is not true to suggest that i am giving false evidence on that aspect. I have stated in my opinion that victim girl is aged above 16 years. I cannot say as seen from the Radiologist s report that the teeth were shown 28 in number. I cannot say anything basing on it and I do not comment on the certificate issued by Radiologist. I have noted in my certificate as 17 years because P. W. 1 represented before me like that. Hymen will be ruptured whenever there is violence. Generally hymen will not be ruptured. It is not true to suggest that the hymen will be ruptured if the person put her finger and rub it. I mentioned that there is no blood or semen but I have mentioned that labiamejora or menora. I have not examined ribs, back and elbow. I have mentioned in my certificate that there are no injuries except the above. It is not true to suggest that the hymen will be ruptured whenever there is violence or rubbing. It is not true to suggest that P. Ws. 1 to 3 and P. W. 8 and also P. W. 6 met me. It is not true to suggest that I am giving false evidence though I have not mentioned in the certificate because P. Ws. 1 to 3 and 6 and 8 met me. I am given my final opinion as it is not appeared in records. I can give the final opinion. It is not true to suggest that I am not competent doctor to give the final opinion. Generally, we give final opinion that I gave my final opinion in any case. 1 to 3 and 6 and 8 met me. I am given my final opinion as it is not appeared in records. I can give the final opinion. It is not true to suggest that I am not competent doctor to give the final opinion. Generally, we give final opinion that I gave my final opinion in any case. Unless I verify my records, I cannot say whether I gave any opinion to anybody. I know that I have to give evidence in this case. I have not brought the accident register or file in this case. (Witness volunteers that as she was not asked to bring the record along with her. "it is explicit from the evidence of P. W. 11 that she determined the age of P. W. 1 basing on the report of the Radiologist. According to her, P. W. 1 was aged above 16 years. Right from the date of registration of the crime, the age of the victim girl has been consistently shown as 17 years. It can be said without any controversy that the victim (P. W. 1) was aged above 16 years as on the date of the incident. In other words she was of consenting age as on the date of the incident. ( 14 ) IT is the version of P. W. 1 that On the date of the incident she was standing on the payal of her portion. Then A2 who was standing in the varandah of the portion of her father called her and so she went there and thereupon A2 closed her mouth and took her into a room where A1 had been present. Thereafter, A1 thrusted some cloth in her mouth and tied her hands with a towel, removed her langa and ravished her. It is also her case that the accused made her to write a letter putting her under threat. What is to be gathered from the evidence of p. W. 1 is that she went to the portion of the accused as soon as A2 called her. P. W. 1 stated in Ex. P. 1 report that there were long standing disputes between her family and family of the accused. When there was hostility between the two families, the conduct of the victim (P. W. 1) in proceeding to the portion of the accused was very strange. P. W. 1 stated in Ex. P. 1 report that there were long standing disputes between her family and family of the accused. When there was hostility between the two families, the conduct of the victim (P. W. 1) in proceeding to the portion of the accused was very strange. Probably to overcome that situation, the victim changed her version and deposed before the Court that there was no enmity between the two families. The reason for changing her version before the Court is quite obvious and it need not be dilated. Since the two families were not on cordial terms, the conduct of the victim respondent to the call of A2 is quite unnatural and unbelievable. According to P. W. 1, she sustained swelling injuries on her back. I deem it appropriate to refer the relevant portion of her cross-examination which reads as under:". . . Then, A1 pulled me down at the time of the offence. I sustained blows on my head, backside and also on my back. I got swelling injuries. A1 was laid on me for 4 to 5 minutes. "p. W. 11, the Doctor who medically examined her did not find any injuries on her person. Absence of the injuries on the person of P. W. 1 creates any amount of doubt on the account of the incident narrated by her in the factual circumstances of the case. It is not out of place to mention the physical features of the P. W. 1 and A1. Their physical features can be noticed from the evidence of the Investigating Officer who has been examined as P. W. 13. He states in the cross-examination as follows:". . . . . AS per the age certificate issued by r. M. College, Kakinada the height of the victim girl is 162 cms while the weight is shown as 46 Kgs. It is printed in the age certificate and it is stated that the upper and lower teeth are 32. It is mentioned that the age of P. W. 1 is 16 years. The age certificate of A1 reveals that he had 28th teeth in a line. The height is shown as 169 cms and the weight is shown as 48 Kgs. Nobody was living in two portions of the house, where the offence is committed. It is mentioned that the age of P. W. 1 is 16 years. The age certificate of A1 reveals that he had 28th teeth in a line. The height is shown as 169 cms and the weight is shown as 48 Kgs. Nobody was living in two portions of the house, where the offence is committed. "the descriptive particulars of physical features of P. W. 1 and A1 indicate that they are equally strong and neither of them is weak nor feeble. ( 15 ) LEARNED Counsel appearing for the appellant/a1 submits that the prosecution suppressed the letter allegedly secured by the appellant/a1 putting P. W. 1 under threat and thereby disabled him to proabablize that P. W. 1 was a consenting party. Though the letter as it is was not exhibited in the trial Court but the text of the letter was reproduced in the mediatornama-dated 4. 11. 1995, which has been exhibited as ex. P4. The letter reads as follows:"dear Srinu. . Your Durga writes. . I am safe. I hope you are safe. Today is Friday. I shall compulsorily meet you at 12 o clock at your old house. I received your letters. I am feeling very much in giving reply. You have not gone to Madras for my sake. Many thanks. I hope that this relation be continued. I am praying God. Sd/. A. Durga. " ( 16 ) IT is well settled that it is not necessary for the defence to prove its case with the same rigour as the prosecution is required to prove its case, and it is sufficient if the defence succeeds in throwing a reasonable doubt on the prosecution case which is sufficient to enable the Court to reject the prosecution version. ( 17 ) THE text of the letter referred to in ex. P. 4 mediatornama indicates that the victim girl and A1 were not aliens to each other and there was some sort of intimacy between them. If at all, A1 obtained the letter by putting P. W. 1 under threat, nothing prevented her to inform the same to her parents on the date of the incident itself. More particularly when their portions are opposite to each other under the same roof. These circumstances proabablize that the victim girl was a consenting party. If at all, A1 obtained the letter by putting P. W. 1 under threat, nothing prevented her to inform the same to her parents on the date of the incident itself. More particularly when their portions are opposite to each other under the same roof. These circumstances proabablize that the victim girl was a consenting party. It has come on record that the victim girl was of consenting age as on the date of the incident. The Trial court has not considered the evidence brought on record in right perspective and thereby erred in finding A1 guilty for the offences under Sections 342 and 376 IPC and A2 guilty for the offence under Section 342 IPC. ( 18 ) IN the result, this criminal appeal is allowed setting aside the judgment of conviction and sentence dated 31st december, 1998 passed in S. C. No. 240 of 1996 on the file of Assistant Sessions Judge, bhimavaram and consequently the appellant/ a1 is acquitted of the offences under Sections 376 and 342 IPC and appellant/a2 is acquitted of the offence under Section 342 ipc. Their bail bonds shall stand cancelled. The fine amounts paid by appellant/a 1, if any, is ordered to be refunded.