Judgment :- Common Judgment: M. Chockalingam, J. This judgment shall govern these two appeals, namely C.A.Nos.134 and 188 of 2005. 2. C.A.No.134 of 2005 is filed by A-3 and C.A.No.188 of 2005 is filed by A-2 and A-4. These three appellants along with one another, who was shown as A-1, stood charged and tried as follows: Charges: I - A-1 to A-4 - Section 341 IPC (2 counts) II - A-1 to A-4 - Section 506(ii) IPC III - A-1 to A-4 - Section 367 IPC IV - A-1 to A-4 - Section 367 IPC r/w S.3(2)(5) of SC/ST Act. V - A-1 to A-4 - Section 366 IPC r/w Section 3(2)(5) of SC/ST Act VI - A-1 to A-4 - Section 376(2)(g) IPC r/w Section 3(2)(5) of SC/ST Act VII - A-1 - Section 397 IPC Pending trial, A-1 died. Hence, the trial was conducted in respect of A-2 to A-4. On trial, A-2 to A-4 were found guilty under Sections 341 (2 counts), 506(2), 367 (2 counts), 366 and 376(2)(g) (2 counts) IPC. They were sentenced to undergo one month SI each for each counts for the offence under Section 341 IPC. They were sentenced to undergo 2 years RI each under Section 506(2) IPC. They were also sentenced to undergo 5 years RI each for each counts and to pay a fine of Rs.5000/-each and in default to undergo one year RI each under Section 367 IPC (2 counts). For the offence under Section 366 IPC, they were sentenced to undergo 5 years RI each and to pay a fine of Rs.5000/-each and in default to undergo one year RI. They were also sentenced to undergo life imprisonment each for each count and to pay a fine of Rs.10000/- each, in default to undergo 3 years RI under Section 376(2)(g) IPC (2 counts). The sentences were ordered to run concurrently. Hence, these appeals have been brought forth by the appellants. 3. The brief facts of the prosecution case before the trial court can be stated thus: a) P.Ws.1 and 2 belonged to Tattankulam. They were working at Aryabhavan Hotel, Palani. After finishing their work and getting their salary, they were proceeding to their village along with Manikandan and Krishnan at about 11.00 p.m. on 27.05.1995. At about 11.30 p.m., when they were coming near the railway gate, all the accused waylaid them. They were working at Aryabhavan Hotel, Palani. After finishing their work and getting their salary, they were proceeding to their village along with Manikandan and Krishnan at about 11.00 p.m. on 27.05.1995. At about 11.30 p.m., when they were coming near the railway gate, all the accused waylaid them. They dragged both the victims, namely P.Ws.1 and 2 to the nearby President Natrayan field. The accused have criminally intimidated the two persons with knife. Hence, both Manikandan and Krishnan ran away from the place of occurrence. Despite the request made not to do, both the victims, namely P.Ws.1 and 2 were raped and sexually assaulted by all the four accused continuously from 12.00 midnight to 4.00 a.m. However, P.W.2 escaped from the place and ran away to the nearby village and informed to the villagers, including P.W.3. The villagers rushed to the place of occurrence. On seeing them, all the accused escaped from the place of occurrence and they could not be caught. b) P.Ws.1 and 2 were taken to the Town Police Station, Palani, where P.Ws.1 and 2 gave a joint report to P.W.7, the Sub Inspector of Police, which was marked as Ex.P.1, on the strength of which, P.W.7 has registered the case in Crime No.388 of 1995 under Sections 341, 366, 376 and 379 IPC. Ex.P.11, the FIR was despatched to the Court. c) P.Ws.1 and 2 were sent for medical examination. P.W.10, the Doctor attached to the Palani Government Hospital, medically examined P.W.2 and has issued Ex.P.15, the medical report. P.W.1 was also medically examined by P.W.10, the Doctor. Ex.P.16 is the medical report in respect of P.W.1. d) Investigation was taken up by P.W.12, the Inspector of Police, on receipt of the copy of the FIR. He proceeded to the place of occurrence and made an inspection in the presence of the witnesses. He prepared Ex.P.3, the observation mahazar and Ex.P.20, the rough sketch. Pending investigation, on 6. 1995, he arrested A-1, who died subsequently. A-1 voluntarily came forward to give a confessional statement, which was recorded in the presence of the witnesses, the admissible part of which was marked as Ex.P.21. Pursuant to his confessional statement, he produced M.O.7, knife and M.O.11, Thali chain, which were recovered under Ex.P.4, mahazar. A-2 was also arrested. 1995, he arrested A-1, who died subsequently. A-1 voluntarily came forward to give a confessional statement, which was recorded in the presence of the witnesses, the admissible part of which was marked as Ex.P.21. Pursuant to his confessional statement, he produced M.O.7, knife and M.O.11, Thali chain, which were recovered under Ex.P.4, mahazar. A-2 was also arrested. He also voluntarily came forward to give a confessional statement, which was also recorded, the admissible part of which was marked as Ex.P.22. Pursuant to his confessional statement, M.O.12, knife was recovered under a cover of mahazar. A-3 was also arrested. He has also given a confessional statement voluntarily, which was also recorded, the admissible part of which was marked as Ex.P.23. M.O.13, knife was recovered from him pursuant to his confessional statement under a cover of mahazar. The accused were sent for judicial remand. A-4 was arrested on 6. 1995. He also came forward to give a confessional statement and the same was recorded, the admissible part of which was marked as Ex.P.24. Pursuant to his confessional statement, M.O.14, knife was recovered under a cover of mahazar. e) It is brought to the notice that the victims belonged to Scheduled caste and hence a certificate was obtained by the Tahsildar. P.W.13, the Deputy Superintendent of Police took up further investigation. All the material objects recovered from the victims were sent for chemical analysis, which resulted in two reports. Ex.P.25 is the Chemical Analysts report and Ex.P.26 is the Serologists report. On completion of the investigation, the Investigating Officer has filed the final report. 4. The case was committed to the court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution has examined 13 witnesses and relied on 26 exhibits and 14 M.Os. Pending trial, the first accused died and hence, the trial was conducted in respect of A-2 to A-4. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which they flatly denied as false. No defence witness was examined. The trial court heard the arguments advanced on either side and found the accused/appellants guilty as per the charges as stated above and awarded punishment as referred to above. Hence, these two appeals have been brought forth by the appellants. 5. No defence witness was examined. The trial court heard the arguments advanced on either side and found the accused/appellants guilty as per the charges as stated above and awarded punishment as referred to above. Hence, these two appeals have been brought forth by the appellants. 5. Advancing his arguments on behalf of the appellants, the learned counsel would submit that the lower court has taken an erroneous view; that in the instant case, the prosecution has miserably failed to prove any one of the charges levelled against the appellants; that the gist of the case of prosecution was that on the date of occurrence that was on 25. 1995 at about 11.00 p.m., P.Ws.1 and 2 proceeded towards their village; that the accused persons waylaid them and dragged them to the nearby Natrayan field and raped them continuously from 12.00 midnight to 4.00 a.m.; that during that time, the thali chain of P.W.1 was snatched; that when the villagers came, all the accused fled away from the place of occurrence; and that on the complaint of P.Ws.1 and 2, the accused were arrested and interrogated. 6. 6. Added further the learned counsel that both P.Ws.1 and 2 were proceeding with Manikandan and Krishnan from Aryabhavan Hotel till the place of occurrence; that both P.Ws.1 and 2 were dragged in the presence of these two persons; that the two persons were criminally intimidated by all the accused, who were having knife in hand; that if to be so, these two witnesses, though they were examined by the Investigator at the time of investigation of the case, they were not examined before the court for the reasons best known to the prosecution; that the non examination of these two witnesses was fatal to the prosecution case; that had it been true that these two witnesses have witnessed such an occurrence of dragging and outraging the modesty of the women, it is quite natural for any one, even if they were under grip of fear, to inform the same to the nearby villagers and the villagers would have come to the place of occurrence to rescue the victims, but not done so; that this would indicate that such an occurrence could not have happened at all; that so far as P.Ws.1 and 2 are concerned, both of them have categorically admitted at the time of evidence before the court that they did not know any one of the accused or their names; that further they have stated that when they were taken to the police station, five persons were kept in the police station; that P.W.1 was able to identify only one, out of 5; that P.W.2 was unable to identify any one of 5; that it is a matter of surprise to note that while even as per the prosecution case, the accused were 4 in number, how 5 persons were taken to the police station and by whom they were taken to the police station were remained unknown till the end of the case proceedings; that when P.Ws.1 and 2 have categorically stated that they did not know all or any one of the accused previously, the identification parade, in the instant case, was must, but not conducted and that there is no explanation from the side of the prosecution. 7. 7. Further, the learned counsel would submit that according to P.W.1, at the time of occurrence, her thali chain was snatched by one of the accused; that according to the prosecution, it was recovered from the accused at the time of arrest and confessional statement, but according to P.W.1, when she went to the police station to give complaint, 5 persons were kept there and the thali chain was shown to her and thus, it would indicate that the alleged arrest, confessional statement and the recovery of thali chain cannot be but a false one; that according to P.Ws.1 and 2, at the time of occurrence, it was P.W.2, who escaped from the place of occurrence and she went over to the nearby village and called the villagers and all of them came there and on seeing the villagers, all the accused fled away from the place of occurrence; that as per Ex.P.1, it was found to be contrary; that as per Ex.P.1, both of them went over to the village and informed the same to the villagers; and that according to P.W.2, she slept over till morning and then, she went to the village; and that this would indicate that such an occurrence could not have happened at all. 8. The learned counsel would further submit that there is no light at the place of occurrence and both P.Ws.1 and 2 have admitted the same; and that when the occurrence has taken place at a dark hour and when P.Ws.1 and 2 did not know the accused already, it is not possible to find out or identify the accused properly. The learned counsel would further submit that there is no light at the place of occurrence and both P.Ws.1 and 2 have admitted the same; and that when the occurrence has taken place at a dark hour and when P.Ws.1 and 2 did not know the accused already, it is not possible to find out or identify the accused properly. Added further the learned counsel that in a sexual assault like this, medical opinion will play a vital role; that P.W.10, the Doctor has examined both P.Ws.1 and 2; that P.W.10 has issued Ex.P.15 and Ex.P.16, the medical reports in respect of P.W.2 and P.W.1 respectively; that both the reports, when looked into would clearly reveal that nothing was found as to the sexual assault in respect of P.W.2; that in respect of P.W.1, there was swelling found in her private part and thus, this would indicate that the medical opinion did not corroborate the prosecution case; that had it been true that both P.Ws.1 and 2 were sexually assaulted by 4 persons between 12.00 midnight and 4.00 a.m., naturally the cloths should have contained semen, but nothing was detected at the time of examination; that this would go against the case of prosecution and under these circumstances, even if it is true that both P.Ws.1 and 2 were sexually assaulted, it might have been done by somebody else and not the appellants herein and that the actual assailants remained unknown; that the investigation agency did not take serious steps to find out the true culprits, but these four persons, who were innocence, were roped in the case; that in the absence of any evidence, the lower court has found these appellants guilty and hence, they are entitled for acquittal in the hands of this court. 9. Heard the learned Additional Public Prosecutor on the above contentions. The court has paid its anxious consideration on the submissions made. 10. 9. Heard the learned Additional Public Prosecutor on the above contentions. The court has paid its anxious consideration on the submissions made. 10. As seen above, the gist of the case of prosecution was that P.Ws.1 and 2, the alleged victims, were sexually assaulted by A-1 to A-4 when they were returning to their village at about 11.30 p.m. A-1 to A-4 waylaid P.Ws.1 and 2 while they were crossing the railway gate and dragged them to the nearby field and raped them continuously from 12.00 midnight to 4.00 a.m. In order to substantiate the case, the prosecution has examined these two alleged victims as P.Ws.1 and 2 and also relied on medical opinion canvassed through P.W.10, the Doctor, by marking Exs.P.15 and P.16, the medical reports of P.W.2 and P.W.1 respectively. When scrutinizing the materials available carefully, the court is afraid whether it can subscribe the judgment of the trial court. The evidence of P.Ws.1 and 2 by itself, would be sufficient to reject the prosecution case. According to both the alleged victims, they were accompanied by two persons, namely Manikandan and Krishnan from Aryabhavan Hotel till the place of occurrence. Even according to both P.Ws.1 and 2, these two persons were also threatened by the accused party. If to be so, it is quite natural that one would expect those persons, even if they were under grip of fear, to inform the same to the nearby villagers immediately. It is also an admitted position that near the place of occurrence, there were number of villages situated around. Even according to P.Ws.1 and 2, immediately they went to the nearby village and informed the same. Had it been so, one would naturally expect these two persons, who witnessed the occurrence of outraging the modesty of the two women, to go to the village and inform the matter to the villagers, but they were kept quiet. The Investigating Agency claimed that those witnesses, namely Manikandan and Krishnan were interrogated and their statements were recorded under Section 161 Cr.P.C. during investigation. But, they were not examined before the court. Thus, it can be well stated that the non examination of those two witnesses would fatally affect the prosecution case. 11. According to P.Ws.1 and 2, they did not know the identity or even the names of all the accused persons. But, they were not examined before the court. Thus, it can be well stated that the non examination of those two witnesses would fatally affect the prosecution case. 11. According to P.Ws.1 and 2, they did not know the identity or even the names of all the accused persons. Under these circumstances, it is needless to say that the law would require the conduct of identification parade, but in the instant case, identification parade was not done. The prosecution came with an explanation to state that when P.Ws.1 and 2 went to the police station at about 2.00 p.m. on 28.05.1995, the accused were kept in the police station and P.Ws.1 and 2 were asked to identify them. At this juncture, it is pertinent to point out that the occurrence has taken place away from the Town Police Station, Palani. The facts as to how the accused persons were brought to the police station and by whom they were brought and how they were available at the time when P.Ws.1 and 2 came to the police station to give the complaint remained unknown even at the time of appeal. P.W.1 was able to identify only one accused, but P.W.2 was not able to identify any one of them. Under these circumstances, this would directly go against the prosecution case. Thus, it can be well stated that the victims were not able to identify the assailants even within one day at the police station. Thus, any kind of identification before the court at the time of trial was of no legal significance and cannot be attached any evidentiary value. 12. As rightly pointed out by the learned counsel for the appellants, medical opinion was actually against the prosecution case. The prosecution relied on the evidence of P.W.10, the Doctor, who examined both P.Ws.1 and 2. She has issued Exs.P.15 and P.16, the medical reports of P.Ws.2 and 1 respectively. When they are scrutinized, so far as P.W.2 is concerned, there was no indication of any commission of rape or anything found. So far as A-1 is concerned, her private part was found swelling and no other symptoms was found. Even the cloths were actually subjected to analysis by the department, but the evidence is actually against the prosecution. Curiously, P.W.1 has well admitted that she has not witnessed the sexual assault of P.W.2. So far as A-1 is concerned, her private part was found swelling and no other symptoms was found. Even the cloths were actually subjected to analysis by the department, but the evidence is actually against the prosecution. Curiously, P.W.1 has well admitted that she has not witnessed the sexual assault of P.W.2. While P.W.2 has stated that she did not witness the sexual assault of P.W.1 and thus, the evidence of one cannot be the corroborate piece of evidence in respect of the other. 13. The added circumstance was that according to both P.Ws.1 and 2, when the occurrence was going on, P.W.2 escaped from the place of occurrence and went nearby village and brought the villagers and on seeing them, all the accused fled away from the place of occurrence. But, as per Ex.P.1, the earliest statement, both of them went over to the nearby village and informed the matter and thereafter, they were taken to the police station. Further, according to P.W.2, till morning hours, she was sleeping there and thereafter, she woke up. All would go to show that it is highly doubtful whether such an occurrence has taken place at all. In a case like this, deterrent punishment is to be awarded and the Court must accept the evidence in its strict sense and term, but in the instant case, the Court is unable to agree with the prosecution case from all the angles. According to P.W.1, at the time of occurrence, her thali chain was snatched and was taken away by one of the accused. At the time when they went to the police station to give the complaint, the thali chain was actually shown. But, it is a matter of surprise to note that the Investigating Officer has deposed that at the time of arrest, after a short interval, it was recovered from A-1, pursuant to his confessional statement. Thus, this would go against the evidence of P.W.1. In the face of the evidence of P.Ws.1 and 2, which was thoroughly unbelievable and the medical evidence also did not corroborate with the prosecution case and the alleged arrest, confessional statement and the recovery would also fall to ground, the Court is unable to see any merit in the prosecution case. But, the lower court, without considering all the aspects of the matter, has found the accused/appellants guilty. But, the lower court, without considering all the aspects of the matter, has found the accused/appellants guilty. Hence, the judgment of the lower court has got to be made undone only by upsetting the same. 14. Accordingly, the judgment of conviction and sentence imposed by the lower court is set aside. The appellants/accused Nos.2 to 4 are acquitted of the charges levelled against them. They are directed to be set at liberty forthwith unless they are required in connection with any other case. The fine amount, if any paid by them, shall be ordered to be refunded to them. 15. In the result, the criminal appeal is allowed.