Judgment : Per D. MURUGESAN, J. 1. The appellant was tried as A1, along with three other accused, in S.C. No. 51 of 2002 on the file of the Principal Sessions Judge, Erode. After trial, he was found guilty of the offences under Sections 366 read with 34,323, 324, 506 (ii) I.P.C. and 376 (2)(g) I.P.C. read with Section 3(2) (v) of Scheduled Tribe Act (Prevention of Atrocities) Act, 1989 and sentenced him to undergo R.I. for 7 years and imposed a fine of Rs.1,000/- in default R.I. for one year for the offence under Section 366 read with 34 I.P.C. imposed a fine of Rs.500/- in default R.I., of 6 months for the offence under Section 323 I.P.C. Life imprisonment and imposed a fine of Rs.1,000/- in default R.I. for one year for the offence under Section 376 (2) (g) I.P.C. read with 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act, 1989 and imposed a fine of Rs. 1,000/- in default R.I. for one year for the offence under section 324 I.P.C. 2. Questioning the above conviction an sentence the present appeal has been preferred by the appellant. 3. When the appeal was taken up for hearing, the learned Additional Public Prosecutor Mr. P. Kumaresan has submitted that this Court had an occasion to consider the appeals filed by A2 and A3 questioning the judgment made in S.C. No. 51 of 2002 on the file of the Principal Sessions Judge, Erode, in Crl. A. No. 809 of 2004 and Crl.A. No. 100 of 2005. A Division Bench of this Court, by judgment dated 23.8.2006 disposed of those appeals on the following lines:- “A1 and A2 are acquitted of the offence under Section 3(2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. A1 is also acquitted of the offence under Section 324 I.P.C. The conviction of A1 and A2 for offences under Sections 366 read with Section 34 I.P.C. 323and 376 (2) (g) I.P.C. is confirmed. The conviction of A1 for the offence under Section 506 (ii) is confirmed. Theconviction of A3 and A4 for offences under Sections 366 read with 34, 323 and 376 (2) (g) read with 109 I.P.C. is confirmed. For offences under Sections 376 (2) (g) I.P.C. and 376 (2) (g) read with Section 109 I.P.C. A2 and A3 stand sentenced to undergo rigorous imprisonment for ten years. Theconviction of A3 and A4 for offences under Sections 366 read with 34, 323 and 376 (2) (g) read with 109 I.P.C. is confirmed. For offences under Sections 376 (2) (g) I.P.C. and 376 (2) (g) read with Section 109 I.P.C. A2 and A3 stand sentenced to undergo rigorous imprisonment for ten years. Rest of the sentences imposed on them for the other offences are maintained.” 4. The learned Additional Public Prosecutor has further submitted that though A2 and A3 alone had filed appeals questioning the conviction and sentence imposed on them, the Division Bench of this Court on consideration of the evidence let in by the prosecution found A1 and A4 are also guilty. The said judgment was rendered following the judgment of the Apex Court reported in Gurucharan Kumar and Another v. State of Rajasthan AIR 2003 SC 992 : (2003) 2 SCC 698 . Hence, the conviction and sentence against the appellant, namely, A1 was confirmed and no appeal could be entertained as the same is not maintainable. 5. Though this appeal was listed as many as seven times, as the learned counsel for the appellant did not appear, this Court appointed V. Anandamurthy as Mr. Amicus Curiae to assist the Court in this case to decide the question of maintainability and the case of the appellant. 6. Mr. V. Anandamurthy, learned counsel appearing for the appellant would submit that when this appellant was not a party to the appeals filed by A2 and A3 before this Court and no appeal was field by this appellant before this Court against the judgment of conviction and sentence passed by the learned Principal Sessions Judge, Erode, whatever finding rendered by the earlier Division Bench of this Court against this appellant in the appeals field by A2 and A3 is not binding on him. It is further contended by the learned counsel appearing for the appellant that any finding rendered by this Court without hearing him cannot have any bearing on him and therefore, the contention of the learned Additional Public Prosecutor should be rejected. 7. As the issue of maintainability of the present appeal is raised, we are inclined to answer the said issue at first. 8. The appellant A1 was tried along with other three accused, namely, A2, A3 and A4 in S.C. No. 51 of 2002 on the file of the Principal District Sessions Court, Erode. 7. As the issue of maintainability of the present appeal is raised, we are inclined to answer the said issue at first. 8. The appellant A1 was tried along with other three accused, namely, A2, A3 and A4 in S.C. No. 51 of 2002 on the file of the Principal District Sessions Court, Erode. To prove its case, the prosecution examined 21 witnesses, field 37 exhibits and marked four material objects. After the completion of the trial, on the basis of oral and documentary evidence, the learned District Judge convicted and sentenced all the accused as stated supra. As against the said judgment of conviction and sentence, all the four accused are entitled to approach this Court by way of preferring appeal in terms of Section 374 (2) Cr.P.C. Section 374 (2)Cr. P. C. reads thus:- “(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years (has been passed against him or against any other person convicted at the same trial), may appeal to the High Court.” 9. As per sub-Section 2 of Section 374 Cr.P.C. a person convicted by any Court and the period of sentence of imprisonment is more than seven years, he is entitled to approach the High Court by way of appeal, which is a statutory right of appeal and it cannot be deprived of under any circumstances. 10. This leads us to the next question as to whether the finding of this Court made in earlier judgment in respect of the appellant herein is binding on him when he was not the party to the judgment and was not heard. 11. A right of hearing is inbuilt in criminal jurisprudence both for the accused as well as the prosecution. Such right is tilted in favour of the accused, more so, in the teeth of the provisions of the Cr. P.C. and more particularly, Section 233 Cr.P.C. which enables the accused to enter upon defence and Section 313 Cr. P.C. which provided for an opportunity to the accused to explain any circumstances appearing in the evidence against him and an opportunity of hearing as to the sentence as well. P.C. and more particularly, Section 233 Cr.P.C. which enables the accused to enter upon defence and Section 313 Cr. P.C. which provided for an opportunity to the accused to explain any circumstances appearing in the evidence against him and an opportunity of hearing as to the sentence as well. As far as the right to enter upon defence, the accused is entitled to put of the his defence, in the course of trial, challenging the veracity or truthful of evidence let in on behalf of the prosecution. On completion of trial, the accused is also entitled to explain any incriminating materials available against him in the evidence let in on behalf of the prosecution. It has been held by the Apex Court that the circumstances which according to the prosecution lead to proof of the guilt against the accused must be put to him in his examination under Section 313 Cr. P.C. otherwise, the entire proceedings become vitiated. This law is laid down by the Apex Court in the decision in Vikramjit Singh Alias Vicky v. State of Punjab, (2007) 1 SCC (Cri) 732. Even after the Court comes to the conclusion that the accused had committed the offence and consequently found him guilty, the Court must give an opportunity of asking questions relating to the sentence. Again, this right of accused to answer the question regarding sentence is also a valuable right and the same cannot be denied. 12. Further, the appellate Curt, while considering the legality of the judgment, is empowered to exercise all powers of the trial Court as well. As the appeal is a continuous proceedings, the accused is entitled to canvas the violation of the above provisions of the Cr. P.C. in challenging the judgment of conviction in appeal. Hence, before conviction is made and the sentence is imposed, affording of an opportunity of hearing the accused would alone meet the above requirements and without affording such opportunity, the accused cannot be found guilty and thereby, he cannot be convicted and sentenced. Even in an appeal is filed by an accused and engaged a counsel to represent him and the name of the learned counsel is printed in the cause list, no Court can dispose of the appeal without hearing the learned counsel for the accused. Even in an appeal is filed by an accused and engaged a counsel to represent him and the name of the learned counsel is printed in the cause list, no Court can dispose of the appeal without hearing the learned counsel for the accused. In the decision in Swarth Mahto and Another v. Dharmdeo Narain Singh AIR 1972 SC 1300 : (1972) 2 SCC 273 : (1973) 1 MLJ (Crl) 83. the Hon‘ble Supreme Court while dealing with a similar situation has held as follows at p. 85 of MLJ (Crl): “ 6… We are unable to see how it could be said in the circumstances of this case that a fair and reasonable opportunity had been given to the appellants before they were convicted. If by mistake of the Court or its Office, the appellants who were respondents in that case were not informed of the date of hearing, it will be unreasonable to hold that an opportunity had been given to them merely because notice had been issued to them of the appeal some 21/2 years earlier. The very idea behind publishing the cause list is to give notice to advocates and the parties that the case in which they were concerned was going to be heard on or after a particular day. Where no such notice had been given, it will be idle to say that no opportunity had been denied. In our opinion, there was no proper hearing of Criminal Appeal No. 52 of 1996 and therefore, the order of conviction and sentence recorded by the High Court must be set aside. We have not referred to the facts of the case because we are not concerned with the same. The High Court shall hear the appeal afresh after issuing necessary notice to the parties”. 13. The next question therefore would arise is as to whether the finding given in respect of A1 and A4 is binding on the appellant A1 or not. 14. The Apex Court in Raja Ram and others v. State of Madya Pradesh (1994) 2 SCC 568 : (1994) 1 MLJ (crl) 659 is held as follows at p. 662 od MLJ (Crl): “ 10. Ram Sahai (accused 4) has not filed any appeal against his conviction and sentence. However, we find that his case is identical to the case of the appellants and there is no distinguishing feature. Ram Sahai (accused 4) has not filed any appeal against his conviction and sentence. However, we find that his case is identical to the case of the appellants and there is no distinguishing feature. In our opinion it is therefore appropriate that the benefit of our judgment should be made available to Ram Sahai. His conviction is also altered from the one under Sections 302/149 I.P.C. to one under Section 304 Part II read with Section 149 I.P.C. He is also sentenced to five years rigorous imprisonment and to pay a fine of Rs.1,000. In default of fine, he shall further rigorous imprisonment for one year…” 15. As rightly contended by the learned counsel for the appellant, the Court can extend the benefit to the non-appealing accused when the case is identical to the case of the appellant and it is not proper or correct to impose any finding or decision, which is not beneficial to the non-appealing accused, who has no opportunity of put forth his case. 16. Further, when the appellate Court does not believe the prosecution case and the prosecution miserably fails to prove its case and in the event of acquittal of the appellant/accused and in that event alone, the Court can have a right to extend the benefit of the judgment to the non-appealing accused. The said principle laid down in Raja Ram and Others v. State of M. P. ( supra) was followed by the Apex Court in its subsequent judgment in Dandu Lakshmi Reddy v. State of A. P. AIR 1999 SC 3255 : (1999) 7 SCC 69 : (2000) 1 MLJ (Crl) 135. In para 25 of its judgment, the Supreme Court has held as follows at p. 140 of MLJ (Crl) : “…. Ofcourse her conviction is not before us as she did not file any special leave petition. But this Court has set up a judicious precedent for the purpose of averting miscarriage of justice in similar situations. On the evaluation of a case, if this Court reaches the conclusion that no conviction of any accused is possible the benefit of that decision must be extended to his co-accused also though he has not challenged the order by means of an appeal petition to this Court (vid Raja Ram v. State of M. P.)”. 17. On the evaluation of a case, if this Court reaches the conclusion that no conviction of any accused is possible the benefit of that decision must be extended to his co-accused also though he has not challenged the order by means of an appeal petition to this Court (vid Raja Ram v. State of M. P.)”. 17. Recently, the Hon‘ble Apex Court had an in considered the very same question in Arokia Thomas v. State of T. N. (2007) 1 SCC (Cri) 140 : (2007) 1 MLJ (Cri) 599. 18. In terms of Article 142 of the Constitution of India, the law laid down by the Apex Court is binding on all Courts including the High Courts and therefore the said ratio that if a Court reaches a conclusion that no conviction of any accused is possible, the benefit of that decision must be extended to his co-accused also, though he has not challenged the order by means of appeal. The above principles was laid down only with an intention to extend the benefit of acquittal or reduction of sentence to the co-accused of the appellant. However, this principle, in converse, cannot be applied. In other words, if a Court comes to a conclusion in an appeal filed by an accused that the prosecution has proved its case beyond reasonable doubt and convicts the appellant, such conviction and sentence should not be extended or given to the non-appealing co-accused, otherwise, it would amount to deprivation of the right of appeal and the opportunity of being heard. 19. If the benefit of the judgement in Crl. A. Nos. 809 of 2004 and 100 of 2005 is extended to the non-appearing accused, namely this appellant, firstly his statutory right of appeal would be deprived of, which is against the provision of Cr. P.C. under Section 374 (2); secondly, he has to suffer with the judgment of conviction and sentence which has been passed behind his back; thirdly, not only the co-accused cannot file any review application as he is not a party to the appeal and lastly, the only remedy for the co-accused is to approach the Supreme Court. The accused is compelled to approach the Supreme Court for no fault on his part. 20. The accused is compelled to approach the Supreme Court for no fault on his part. 20. Therefore, the order of the earlier bench confirming the conviction and sentence cannot bind the present appellant as his statutory right of appeal cannot be deprived of under any circumstances and he cannot be visited with the judgement of conviction and sentence without giving any opportunity of being heard and decided behind his back. 21. Now, the next question arises whether the finding rendered by the earlier bench in respect of appreciation of evidence can be accepted as it is or can it be appreciated by the subsequent Bench. In general, judicial propriety demands that the finding rendered by the earlier Bench on appreciation of evidence of witnesses cannot be ignored by the subsequent bench while appreciating the same evidence in the appeal filed by the co-accused. However, this principle of law cannot be stretched where the accused in the subsequent appeal is able to satisfy the Court that the entire finding rendered by the earlier Bench was without proper appreciation and contrary to the materials available on record and in that event, as there is no other option except to appreciate the evidence of the witnesses, the subsequent bench shall appreciate the evidence of the witnesses, otherwise, the very purpose of the filing the appeal by the accused would be defeated. 22. As we have held that the accused is entitled to approach this Court by way independent appeal and is also entitled to canvas his points seeking for his acquittal, the earlier finding as regard to the appreciation of evidence may also be taken in to consideration by this Court while appreciating the evidence in regard to the submission of the appellant herein. 23. It has been argued by the learned Additional Public Prosecutor that the said judgment was rendered by the earlier Bench on the basis of the judgment of the Supreme Court reported in Gurucharan Kumar & another v. State of Rajasthan, (supra). 24. In our considered view, the said judgment is not applicable to the facts of the present case. In the said judgment, the Apex Court has extended the benefit and consequential acquittal of co-accused who has not preferred appeal. 24. In our considered view, the said judgment is not applicable to the facts of the present case. In the said judgment, the Apex Court has extended the benefit and consequential acquittal of co-accused who has not preferred appeal. The said judgment cannot be applicable where the Court held the appellant guilty and consequently, confirmed the conviction and sentence in the appeal field by co-accused to an accused who had not preferred the appeal. 25. In view of the above discussion, we hold that the appeal is maintainable and the appellant is entitled to canvas his points by assailing the veracity of the evidence and the finding of the earlier Bench. 26. Keeping the above principles in mind, we now propose to consider the case of the appellant on merits with the available oral and documentary evidence in the light of the law. 27. The case of the prosecution in-a-nutshell is as follows: a. P.W. 1 is the prosecutrix, aged about 30 years. She knows the accused. She was doing the business of selling coriander leaves at Erode Big Market. On the occurrence day also, she was doing her business in the market. A1 and A2 were doing their vegetable business. At about 10.45 p.m. on the occurrence night, A1 to A4 were conversing with each other near P.W.1. At that time, A1 told P.W. 1 that she is fair enough and if she goes to the village her complexion would be blackened and that he called P.W.1 to accompany him. P.W.1 responded by stating that he could go rather with his elder or younger sister than calling her. Immediately, A1 slapped on her left cheek and all the four accused by gagging her mouth pulled her and A1 stated that if she shouted, her throat would be slit. When one Meesaikara Ganesan intervened and questioned A1 to A4, they assautled the said Ganesan with hands, resulting in bleeding injuries, Though P.W. 1 tried to wriggle out of the hold of A1 to A4 and run but A1 to A4 overpowered her and took her to a nearby water channel. On the way, when P.W.1 shuted to save her, the accused A1 t A4 intimidated the persons who were sleeping outiside the house to switch off their lights and went inside the house. On the way, when P.W.1 shuted to save her, the accused A1 t A4 intimidated the persons who were sleeping outiside the house to switch off their lights and went inside the house. Then A1 to A4 intimidated the persons who were sleeping outside the house to switch off their lights and went inside the house. Then A1 to A4 took her to a washing area where there were provisions for washing clothes, where P.W.1 was made to lie on one such stone, A1 raped her and bit on her face and chest.A2 also has bitten on her chest.A2 also repeated what A1 did on her. As the P.W.1 shouted, people from the nearby area came running with lights and on seeing them, the accused escaped. Then P.W.1 told the persons, who came there as to what happened. Since she did not have any money at all, she came back to the market and spent the whole night. On the next day, morning, when her husband P.W.2 and her brother-in-law P.W.3 came in search of her to the market, P.W.1, revealed the incident. She also told about the incident to the sellers in the market. As they advised her to go to the police station, she P.Ws. 2 and 3 went to the Erode Town Police Station and gave the complaint Ex.P.1 to the Inspector of Police P.W.17. b. P.W. 17, Inspector of Police after receiving the Ex.P.1, registered a case in Cr. No. 559 of 2001 for offences under Sections 363, 323, 376 I.P.C. read with Section 39 (2)(v) of SC/ST Act. Ex.P.31 is the printed copy of the F.I.R. He sent express records to the Court as well as to the higher officials at 2.00 p.m. P.W.17 arrested A1 at 8.00 a.m. on 7.7.2001. He was examined in the presence of P.W.7 and another. At that time, A1 gave a voluntary confession statement. Ex.P.4 is the admissible portion of the confession statement. On the basis of Ex.P.4 M.O.4 knife came to be recovered under Ex.P.5 The accused along with the case properties was brought to the police station and he submitted his report to the P.W.19 Deputy Superintendent of Police. Ex.P.32, is the memorandum issued by the Deputy Superintendent of Police to P.W. 17 and Ex.P.33 is his report to the Deputy Superintendent of Police. Ex.P.32, is the memorandum issued by the Deputy Superintendent of Police to P.W. 17 and Ex.P.33 is his report to the Deputy Superintendent of Police. c. P.W. 19, Deputy Superintendent of Police, after collecting the express records, examined P.W.1 at 3.00 p.m. on 27.6.2001. P.W.1 took him to the market first and then to the water channel where the offence was committed. After returning to the police station, P.W. 19, sent P.W.1 for treatment with a police medical memo. He also sent other injured, namely, Meesaikara Ganesan with a medical memo to the hospital. Thereafter, P.W. 19 prepared the observation mahazar Ex.P.2 and Ex.P.36 the rough sketch in respect of market and another observation mahazar Ex.P.3 and Ex.P.37, regarding the place of occurrence in the presence of the witnesses. When P.W.1 returned to the police station, after her medical examination, she produced M.O.1, Saree M.O.2 Petty coat and M.O.3 Blouse which were recovered by P.W.19. On 28.6.2001 at 5.30 p.m., P.W.19 arrested A3 and A4 and brought them to the police station and then he sent them to judicial custody. Thereafter, P.W.20 took up the case of further investigation. P.W.17 informed P.W.20 about the arrest of A1 and the recovery of M.O.4 from him. Accordingly, he examined A1 in the police station at 11.30 a.m. on 7.7.2001 and then A1 sent for judicial custody. The case properties were directed to be sent to the Court. He also sent a requisition for examining A1 medically. d. P.W.18 is the duty doctor in the Government Headquarters Hospital at Erode. He examined A1 on 7.7.2001 at 5.00 p.m. pursuant to the order of the Judicial Magistrate No. 2 Ex.P.34, is the report given by P.W.18 on the examination of A1. He found A1 to be potent. To fix his age, P.W.18 found the following injuries and symptoms which contain in Ex.P.34 Accident Register:- “BP - 110 / 70 MMHG. CVS, RS - NAD Secondary Sexual characters well developed. 1. Ref. to radiologist for age 2. There is no signs of external injury 3. Potency tests done - Found to be potent 4. No external injury in the genitalia 5. No foreign hair and smegma present around the external genitalia. 6. Swab taken from the genetalla 7. No signs of recent intercourse in the genitalia. 8. Nil 9. Sent for VDRL test results awaited. 10. Semen collected. 11. Blood collected.” 28. Potency tests done - Found to be potent 4. No external injury in the genitalia 5. No foreign hair and smegma present around the external genitalia. 6. Swab taken from the genetalla 7. No signs of recent intercourse in the genitalia. 8. Nil 9. Sent for VDRL test results awaited. 10. Semen collected. 11. Blood collected.” 28. P.W.18 deposed that there is in evidence of recent intercourse. P.W.20 arrested A2 at 7.00 a.m. on 13.7.2001 and recorded his statement in the presence of witnesses and thereafter he was sent for judicial custody. A2 was subjected to medial examination. P.W.10 who is the duty medial officer in the Government Hospital Erode, examined A2 and issued Ex.P.12 Accident Register stating that he is potent. P.W.10 deposed that there is no evidence of A2 having intercourse in recent time. 29. Thereafter, P.W.20 gave Ex.20, the requisition to P.W.13 to give community certificate for P.W.1. On 20.7.2001, P.W.13 issued Ex.21 the community certificate for P.W.1 stating that she belongs to a Scheduled Caste. On the requisition from P.W.20 P.W.9 Deputy Tahsildar gave the community certificate for A1 and A3 stating that they being to a Most Backward Community. P.W.20 gave a requisition to the Court to send the case properties for chemical examination. Thereafter, P.W. 20 gave the requisition to the Court to examine P.W.1 and the other injured person Meesaikara Ganesan under Section 164 Cr. P.C. P.W.12 is the Judicial Magistrate Erode, who on receipt of Ex.P.17 and production of P.W.1 examined her and recorded her statement, which is Ex.18. On the requisition from P.W.20 P.W.14 Deputy Tahsildar gave the community certificate Ex.P.23 for A4 stating that he belongs to a Most Backward Community. Then he handed over the records to P.W.21 Deputy Superintendent of Police. After examining the witnesses and completing the investigation, P.W.21 laid the charge sheet against the accused on 21.9.2001. 30. As stated earlier, the prosecution in order to prove its case has examined 21 witnesses, filed 37 exhibits and marked produced four material objects. 31. When the accused was questioned under section 313(1) (b) Cr.P.C. in respect of the incriminating materials appearing against them, the accused denied each and every circumstances as false and contrary to the facts. 32. 30. As stated earlier, the prosecution in order to prove its case has examined 21 witnesses, filed 37 exhibits and marked produced four material objects. 31. When the accused was questioned under section 313(1) (b) Cr.P.C. in respect of the incriminating materials appearing against them, the accused denied each and every circumstances as false and contrary to the facts. 32. The learned counsel appearing for the appellant submitted that the evidence of P.W.1 is totally unbelievable inasmuch as even after the occurrence took place at 10.45 p.m. on 26.6.2001, she did not inform either to her husband or to the police or to any person who was there in the market. 33. According to the learned counsel, though there was a crowd in the market due to business transaction at 10.45 p.m. the evidence of P.W.1 that she did not inform to anyone and simply waiting for her husband in the market till he reaches on the next day morning at 8.00 a.m. is not acceptable and as it is unnatural, the evidence of P.W.1 cannot be accepted. 34. Further P.W.1 in her evidence has deposed that when the accused attempted to kidnap her, one Meesaikara Ganesan questioned the accused about their act and the accused assaulted him, but the said Meesaikara Ganesan has not been examined by the prosecution which makes the case of the prosecution as a doubtful one. 35. The learned counsel would further submit that in any case, as per Ex.P.15, except the contusions on the left side of the chest, right breast and upper lip of P.W.1, there is in other external injuries either on her thighs or no her private parts, which was given by the Doctor P.W.11, who examined P.W.1, the evidence of P.W.1 and the case of the prosecution cannot be accepted as the same has not been proved and therefor, the appellant is entitled to acquittal. 36. 36. On the other hand, Mr.P. Kumaresan, learned Additional Public Prosecutor, would submit that when there is clear evidence of P.W.1 and P.W.4 that the accused, after teasing P.W.1 kidnapped her for committing rape and the congestions suffered by P.W.1 on her chest, breast and upper lip, as per the Accident Register Ex.P-15 which was issued by P.W.11 Doctor, who examined P.W.1 and Ex.P-16 clearly reveals that there is evidence of recent intercourse and there is clear evidence of P.W.1 that A1 and A2 committed rape on her and in the absence of any oral or documentary evidence refuting the same, it cannot be said that the prosecution has not proved its case against the accused and therefore, the judgement of conviction and sentence of the trial Court has to be confirmed. 37. Further as far as the contention that there is no external injury on the thighs and the private parts of P.W.1 is concerned, the learned Additional Public Prosecutor would submit that when P.W.11 had deposed that ordinarily the lady, who gave birth two or more children, had intercourse, there cannot be any chance of external injury on her thighs and private parts and therefore, admittedly, when P.W.1 has three children the contention of learned counsel for the appellant has no leg to stand in the light of the medial evidence. 38. At the outset, we will refer to the evidence of P.W.1 is the prosecutrix, who was (sic) allegedly raped by the accused. 39. The learned counsel for the appellant had submitted that her evidence is totally unbelievable in view of her conduct that soon after the alleged occurrence she did not take any effort either to inform anybody or to lodge a complaint to the police but stayed throughout night in the market. 40. We are not inclined to accept the said submission of the learned counsel for the appellant for the simple reason that when P.W.1 was a victim of gang rape, how can one expect that she should have acted on her own. Ordinarily, unless a woman was subjected to such kind of a worst crime, she would not have come out such allegations against the persons committed such allegations against the persons committed such crime. Ordinarily, unless a woman was subjected to such kind of a worst crime, she would not have come out such allegations against the persons committed such allegations against the persons committed such crime. At this juncture, we would like to refer to the observation made by the earlier Bench in this regard while answering to the similar contention of the learned counsel for A2 and A3 which reads as under :- “We also say a passing observation that a Hindu woman would not expose herself to a shameful act of rape, if really it had not happened in her life”. 41. With all respect, we are in entire agreement with the above said observation of the earlier Bench. 42. Further, P.W.1 has specifically stated that she was forcibly taken by the accused and she was forced to lie in the place of occurrence and thereafter, after making contusions on her chest, breast and upper lip by biting her, A1 and A2 committed rape on her. As P.W.1 shouted, the accused fled from the scene of occurrence and thereafter, she came back to the market as she has no money to proceed to her village, namely, Vellode, which is 20 kilometers away from the market and therefore, she had necessarily to wait in the market till her husband came in search her on the next day morning. Thereafter, she went along with her husband to the police station and lodged the complaint against the accused. The above evidence of P.W.1 is quite natural and believable and we do not find any infirmity in her evidence. 43. As far as her evidence to implicate this appellant/accused A1 is concerned P.W.1, has clearly deposed that on the day of occurrence at 10.45 p.m. A1 teased her saying that she was looking fair and called her to stay with him and when she objected to the same, A1 beat on her cheek and while the accused attempting to kidnap her, A1 threatened P.W.1 with dire consequences by putting a knife on her neck. Thereafter, she was taken to the place of occurrence. The above evidence of P.W.1 was corroborated by P.W.4. 44. Further, she deposed in her evidence that after she was taken to the place of occurrence, A1 and A2 were biting on her chest, breast and upper lip and thereafter A1 and A2 committed rape on her. Thereafter, she was taken to the place of occurrence. The above evidence of P.W.1 was corroborated by P.W.4. 44. Further, she deposed in her evidence that after she was taken to the place of occurrence, A1 and A2 were biting on her chest, breast and upper lip and thereafter A1 and A2 committed rape on her. As she cried, the accused fled from the scene of occurrence on seeing the persons coming towards the place of occurrence. The evidence of P.W.1 with regard to the offence of causing injuries and rape by A1 and A2, supported by the evidence of P.W.11 Doctor, who examined P.W.1 and issued Accident Register Ex.P.15, which reads as under :- “Alleged to have assaulted by 4 known persons and raped by 2 known persons at about 10.45 p.m. on 26.6.2001. Married NOC - 3- LCB - 21/2 (N.C.) LMP - Today, O/E patient is conscious, well oriented answering to questions Coherently. Pulse : 84/min. BP : 110/70 Contusion of about 4 cm × 3cm on the left side of the chest just above the breast. Contusion about 4 cm × 4 cm on the right breast. Contusion 1 cm × 1 cm on the upper lip. No injuries over thighs, (N.C.) and external genitalia. Examination : PA : soft, TAT Scar present Hymen : absent, Vagina admit 2 fingers. Patient is in periods, Vaginal smear taken Cx U.T. RV NS FX - free. Bleeding P/V present. Sample of Public hair and vaginal smear handed over to SI Mrs. Yamunadevi of Erode Town PS”. 45. As far as he offence of rape is concerned, P.W.11 deposed that the Chemical Analysis Report reveals that here is symptom for having intercourse and therefor, he issued Ex.P.1, expressing final opinion that there is evidence of recent intercourse. 46. The learned counsel appearing for the appellant has strenuously contended that the absence of injuries on private parts would lead to suspicion as to the commission of rape by the appellant. P.W.11 while depositing his evidence, has stated that having intercourse with the lady, who gave birth two or more children would not make any external injuries on her thighs and private parts and therefore, there cannot be any room for suspicion in the prosecution case, especially when it is not in dispute that P.W.1 has three children. 47. P.W.11 while depositing his evidence, has stated that having intercourse with the lady, who gave birth two or more children would not make any external injuries on her thighs and private parts and therefore, there cannot be any room for suspicion in the prosecution case, especially when it is not in dispute that P.W.1 has three children. 47. The learned counsel would further submit that the alleged rape would not be possible as P.W.1 was on menstrual period as per the medical evidence and therefore, the prosecution case shrouds by mystery. This submission was also considered by the earlier Division Bench and negatived the same by accepting the evidence of the doctor. In fact, the earlier Division Bench has observed that it may be true that she was in the menstrual cycle when she was examined by the doctor on 27.6.2001. It is almost 10 or 12 hours after the crime. The possibility of the prosecutrix entering the menstrual cycle any time after the crime cannot be said to be impossible. Therefore, the fact that she was found to be in the menstrual cycle at the time of examination by the Doctor could not necessarily mean that the accused would not have raped her. We are in entire agreement with the above said finding of the earlier Division Bench and therefore, the contention of the learned counsel for the appellant cannot be accepted. 48. Considering the evidence of P.W.1 P.W.4 and P.W.8 and P.W.11 and particularly Ex.sP14 to 16 we are of the considered view that the prosecution has established the case beyond any reasonable doubt. 49. It has been repeatedly held by the Apex Court that in cases of rape, solely on the reliable evidence of the prosecutrix, conviction can be sustained and there is no need for any corroboration of her evidence. However, in this case, we do find not only the evidence of the prosecutors P.W.1 but also the evidence of other witnesses corroborating the evidence of P.W.1 apart form medical and documentary evidence. Therefore, we are of the considered view that the case of the prosecution has been proved beyond any reasonable doubt and that the conviction and sentence imposed on the appellant for the offences under Section 366 read with 34, 376 (2) (g), 324 and 506 (ii) I.P.C. are confirmed. 50. Therefore, we are of the considered view that the case of the prosecution has been proved beyond any reasonable doubt and that the conviction and sentence imposed on the appellant for the offences under Section 366 read with 34, 376 (2) (g), 324 and 506 (ii) I.P.C. are confirmed. 50. Insofar as the charge under Section 323 is concerned, it is the case of the prosecution that while the accused kidnapping P.W.1, one Meesaikara Ganesan questioned their act and thereby, he was assaulted by the accused. However, the said Meesaikara Ganesan was not examined by the prosecution to prove the above said charge, though he was examined by the Doctor P.W.8 and issued Ex.P.12 Accident register. In these circumstances, as there is no legal evidence in respect of the said charge, we set aside the same. 51. Insofar as the charge under Section 3(2) (v) of the Scheduled Castes and the Schedule Tribes (Prevention of Atrocities) Act, 1989 is concerned, there is absolutely, no evidence. As the prosecution has not made out any case in respect of the said charge against the appellant, we are in entire agreement with the finding of the earlier bench in this regard. Further, it is clear from the oral and documentary evidence, the appellant has not committed such offence for the reason that she belongs to Scheduled Caste. P.Ws. 2 and 3 also did not give such evidence to attract the said offence. Except the reference to her fairness by A1 to A4 we do find nothing to attract the said charge. In these circumstances, and in the absence of any legal evidence the conviction and sentence under Section 3(2)(v) of the Scheduled Castes and the Schedule Tribes (Prevention of Atrocities) Act, 1989 are set aside. 52. Accordingly, the appeal is allowed partly. The judgment of conviction and sentence imposed on the appellant under Sections 366 read with 34, 376 (2) (g), 324 and 506(ii) I.P.C. are hereby confirmed in respect of the offences 376 (2) (g), 324506 (ii) are confirmed. The conviction and sentence imposed on the appellant under Sections 323 I.P.C. and 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 are set aside. 53. We have our appreciation on record that Mr. The conviction and sentence imposed on the appellant under Sections 323 I.P.C. and 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 are set aside. 53. We have our appreciation on record that Mr. V. Anandamoorthy, who has been appointed as amicus curiae by this Court, has assisted this Court ably by preparing and arguing the case in a well manner, particularly, on the question of maintainability and also the case of the appellant. He is entitled to the appropriate fee to be paid by the Tamil Nadu State Legal Services Authority.