Judgment :- These appeals have been preferred against the Judgment in S.C.No.644 of 2003 on the file of the learned Judge of Magalir Needhimandram, Chennai. 2. A1 to A3 have been charged under Section 366 of IPC and convicted and sentenced to undergo 8 years RI each and each of them to pay a fine of Rs.2,000/- with default sentence. A1 and A2 have been charged under Sections 354 of IPC and A3 has been charged under Section 354 r/w 109 of IPC and each of them were convicted and sentenced to undergo RI for a period of two years and also each of them to pay a fine of Rs.500/- with default sentence. 3. The accused were charged under Sections 366, 376(1), 376(1) r/w 34 and 109 of IPC. The case was taken on file by the learned X Metropolitan Magistrate, Egmore, Chennai and on appearance of the accused, on summons to the accused, and on their appearance, furnished copies under Section 207 of Cr.P.C. since the case is exclusively triable by the Court of Sessions, the learned Sessions Judge has committed the case to the Court of Sessions. 4. The learned Sessions Judge, Magalir Neethimandram Chennai on the appearance of the accused framed charges under Section 366 of IPC against A1 to A3 and under section 376(1) IPC against A1 and A2 and under Section 376(1) r/w 34 and 109 IPC against A3 and when questioned, the accused pleaded not guilty. 5. On the side of the Prosecution, P.Ws.1 to 14 were examined. Exs.P1 to P18 were exhibited. But no material objects were marked in this case. 6. P.W.1 is the victim girl. According to her, the occurrence took place on 10/17. 2001 at about 1.15a.m and on the occurrence night her mother was sleeping inside the house while she and her two sisters and brothers were sleeping in front of the house. Exs.P1 to P18 were exhibited. But no material objects were marked in this case. 6. P.W.1 is the victim girl. According to her, the occurrence took place on 10/17. 2001 at about 1.15a.m and on the occurrence night her mother was sleeping inside the house while she and her two sisters and brothers were sleeping in front of the house. While she was asleep, A1 to A3 at the point of knife threatened her and A1 took her to his house and both A1 and A2 have committed the offence of rape in the bathroom of the house of A1 and that after committing the offence all the accused ran away from the house and that she regained conscience and went to her uncles house situated at Second street at 2.00a.m., and after informing about the occurrence, she left the house of her uncle at 6.00 a.m., for her house and that out of fear, she preferred the complaint only on 17. 2001 at 8.00p.m with the police, from where, she was referred to Kilpauk Medical College Hospital for treatment. 6a. P.W.2 is the mother of P.W.1. According to her, on the occurrence date at about 1.00a.m., her(P.W.2) younger daughter came and informed her that P.W1 was kidnapped by three persons at the point of knife. Immediately, she went to her relatives house and also to the house of the accused in search of her daughter(P.W.1) But she could not trace out her and so he returned to her house at about 6.00p.m on the following day.P.W.1 came to the house and narrated what had happened to her and immediately she(P.W.2) contacted her neighbours but they informed that the accused are notorious people and if any complaint is preferred against them, they may even take away the other two sisters. Later she met her brother and only at his instance, she went to the police station and preferred Ex P1 complaint. 6b. P.w.3 is the second daughter of P.W.1 and the sister of P.W.1, She would depose that on the fateful night A1 to A3 have kidnapped P.W.1 at the point of knife and she immediately informed the same to her mother who was sleeping inside the house. (At this juncture, the learned Additional Public Prosecutor informed this Court that co accused A2 and A3 have also filed appeal in Crl.A.No.127 of 2006 which is pending before this Court. 6c. (At this juncture, the learned Additional Public Prosecutor informed this Court that co accused A2 and A3 have also filed appeal in Crl.A.No.127 of 2006 which is pending before this Court. 6c. P.W.4 has not supported the case of the prosecution. Hence he was treated as hostile witness. 6d. P.W.5 is the brother of P.W.2 and the uncle of P.W.1.He would depose that he is not in talking terms with P.W.2, his sister. But on 7. 2001/17. 2001, P.W.1 Sowmiya came to her house at about 2.00 a.m., and she left the house in the early morning. Since he has not supported the case of the prosecution, thereafter he was treated as a hostile witness. 6e. The Mahazar witness P.W.6 has not supported the case of the prosecution. P.W.12 is the then Sub Inspector of Police,Puliyanthope Police Station. According to him, P.W1 came to the police station at about 8.00p.m., on 111. 2001 and preferred a complaint which was registered under Puliyanthope Police Station Crime No.721 of 2001 under Sections 363,376,506(ii) of IPC and Ex P14 is the First Information report. 6f. P.W.13 is the Inspector of Police who took up investigation in this case, had visited the place of occurrence at about 20.00hours on 17. 2001 after perusing the complaint preferred by P.W.1 he went to the place of occurrence and prepared Ex P8 observation Mahazar and had drawn rough sketches Ex P15 and Ex P16 He has recovered the wearing apparels of the victim girl under Ex P17. He has examined the witnesses and recorded their statements. But he took police custody of A1 Subramani who had already surrendered before the Judicial Magistrate, Ambattur on 27. 2001 and recorded his voluntary confession statement but no material objects were recovered on the basis of the confession statement of A1. A3 was arrested in P1 Police Station under Crime NO.722 of 2001 and A2 Suresh was absconding at that time. He was also arrested in some other cases by some other police. 6g. P.W.15 is the successor of P.W.14. P.W 7 is the analyst who had analysed the material objects connected with this case and issued Exs P4 and P5 chemical analysts report. 6h. P.W.8 is the doctor who had referred the victim girl to Gyanecology ward. P.W.9 is the doctor who had examined P.W.1 on 17. 6g. P.W.15 is the successor of P.W.14. P.W 7 is the analyst who had analysed the material objects connected with this case and issued Exs P4 and P5 chemical analysts report. 6h. P.W.8 is the doctor who had referred the victim girl to Gyanecology ward. P.W.9 is the doctor who had examined P.W.1 on 17. 2001 at about 11.30 p.m. She has not noticed any external injury on the person of P.W.1. Ex P8 is the copy of the accident register. P.W.9 has deposed that he found the hymen of P.W.1 ruptured. 6i. P.W.10 is the Assistant in Regional Forensic Science Laboratory, Salem. He had submitted Ex P9 report saying that Item No2 Salwar connected with this case sent for chemical analysis contain stain of semen. P.W.11 is the doctor who had examined A1 and issued Ex P10 certificate stating that A1 is potent. He has also examined A2 and A3 and issued similar certificates under Exs P12 and P13. After completing the formalities, P.W.14 has filed the charge sheet against A1 to A3 on 12. 2001. 7. When incriminating circumstances under Section 313 Cr.P.C. were put to the accused, they would deny their complicity with the crime. The learned Judge has examined one Dr.Thangaraj as C.W.1 only to know some general information regarding the nature of the offence. But he has not examined neither P.W.1 nor the accused. .8. After going through the materials available on record before the trial Court by the prosecution including the oral and documentary evidence, the learned trial Judge has come to a conclusion that the offence constituted under Section 376(1) of IPC has not been made out against the accused by the prosecution beyond any reasonable doubt and accordingly acquitted A1 to A3 under the charge under Section 376(2)(g) of IPC. However, the learned (Magaliar Neethimandram) Sessions judge has convicted A1 to A3 under Section 366 IPC and Sentenced to undergo RI for 8 years each and also slapped a fine of Rs 2,000/- each with default sentence. Both A1 and A2 were also convicted and sentenced under Section 354 IPC and A3 was convicted under section 354 r/w 34 and 109 IPC and sentenced them to undergo two years RI each and a fine of Rs.500/- each with default sentence. Both A1 and A2 were also convicted and sentenced under Section 354 IPC and A3 was convicted under section 354 r/w 34 and 109 IPC and sentenced them to undergo two years RI each and a fine of Rs.500/- each with default sentence. Aggrieved by the findings of the learned Sessions Judge, A1 has preferred Crl.A.No.1172 of 2004 and A2 and A3 have preferred Crl.A.No.127 of 2006. 9. Now the point for consideration in these appeals are whether the conviction and sentence under Section 366 of IPC and also under Section 354 of IPC against the accused are sustainable for the reasons stated in the memorandum appeals? 10. Heard Mr.K.Kannan, learned Senior counsel appearing for the appellants and Mr.V.R.Balasubramaniam, learned Additional Public Prosecutor for respondent and carefully considered their rival submissions. 11. Admittedly the State has not preferred any appeal against the acquittal of the accused under Section 376(2)(g) of IPC. The important point which escaped the notice of the learned trial Judge is the inordinate delay in preferring the complaint to the police by P.W.1. P.W.2 the mother of P.W.1 would give explanation for the delay by saying that after the occurrence, she consulted her neighbours who informed her that A1 is a notorious rowdy and A2 and A3 are his associates and if any complaint is preferred against them, they may even kidnap two other daughters and that she later contacted her brother P.W.5 and only under his instruction, she preferred Ex P1 complaint with the police on 17. 2001 at 8.00p.m., But in support of this explanation, the prosecution has not examined any neighbours who have informed P.W2 about the antecedents of the accused involved in this case. P.W.5 is none other than the brother of P.W.2 who has not supported the case of the prosecution as to the fact that he only instructed P.w.2 to prefer the complaint with the police along with P.W.1. So the delay in this case is unexplained satisfactorily. .12. According to P.W.2, the mother of P.W.1, P.W1 was sleeping on the date of occurrence outside the house and P.W.2 was sleeping inside the house and soon after the occurrence, her younger daughter P.W.3, came and informed her about the occurrence and immediately she enquired about the neighbours and since they warned about the accused out of fear, she has not preferred any complaint immediately. But the natural conduct of the mother who after hearing that her daughter has been kidnapped by three persons at the point of knife would be to raise alarm or make distress call in order to sought the help of others to trace out her daughter But P.W.2 in her evidence would depose that she immediately went in search of her daughter in her relatives house and also in the house of the accused but she could not find her daughter. This part of the evidence of P.W.2 cannot be believed because even according to the prosecution, the offence of rape is said to have been committed by A1 and A2 only in the bath room of A1s house and at the time of commission of offence A3 stood as a guard outside the bathroom of A1. 13. Yet another point to be noted in this case is the evidence of P.W.9, the doctor who had examined P.W.1 the victim girl on 17. 2001 after the occurrence. In the chief examination P.W.9 would depose that he could not find any external injuries on the person of P.W.1. She has stated that he could not see any nail mark or teeth mark over her body and also in her private part. But she would say that hymen of the victim was found ruptured. But in the cross examination the Doctor P.W.9 has deposed to the fact that even before the occurrence, the victim girl would have subjected to sexual intercourse. Only under such circumstances, the learned trial Judge has come to a conclusion that offence under Section 376(2)(g) has not been proved against the accused by the prosecution beyond any reasonable doubt and accordingly acquitted the accused against the charge levelled against them under Section 376(2)(g) of IPC. 14.Even after the arrest of the accused, it is the admitted case of the Investigation Officers P.Ws.13 and 14 that no confession statement was recorded from the accused and no recovery was made from them. According to the prosecution only at the point of knife, the accused have kidnapped the victim. But no material object was recovered and produced by the Investigation Officer in this case. No independent witness was examined to show that on the date of occurrence P.W.1 was kidnapped by A1 to A3 at the point of knife. According to the prosecution only at the point of knife, the accused have kidnapped the victim. But no material object was recovered and produced by the Investigation Officer in this case. No independent witness was examined to show that on the date of occurrence P.W.1 was kidnapped by A1 to A3 at the point of knife. According to the prosecution, kidnapping P.W.1 by the accused is only to commit rape. She was taken to bath room of A1s house and A1 and A2 raped her. But the charge against A1 and A2 under Section 376 (2)(g) has not been proved in this case. 15. On the other hand, the mother of the victim P.W.2 herself has admitted that there is a previous enmity prevailing over between the accused and P.W.2. P.W.2 would say in the cross examination that she had preferred a complaint only on 7. 2001 on the date of occurrence itself whereas the complaint was actually preferred only on 17. 2001 i.e., two days after the date of occurrence. No independent witness was examined to show that on the date of occurrence, the accused have kidnapped P.W1 from the house of P.W.2. 16. Under such circumstances, I am of the view that the charges under Section 366 of IPC and also under Section 354 of IPC have not been proved beyond any reasonable doubt to warrant conviction as against A1 to A3 under the above provisions of law. The point is answered accordingly. 17. In fine, the appeals are allowed and conviction and sentence under Sections 366 and 354 r/w 34 an 109 of IPC awarded by the learned trial Judge in S.C.No.644 of 2003 on the file of learned Judge of Magalir Neethimandram is set aside and the accused/appellants are set at liberty forthwith, if they are not required in any other case. Bail bond executed by the appellants shall stand cancelled.