Judgment :- 1. The Appellants in Crl. A. 0.929 of 2006 are the Accused 1, 3 and 4 in S.C. No.126 of 2002, on the file of the Additional Sessions Judge, FTC-II, Tindivanam. The Appellant in Crl. A. No.913 of 2006 is the Second Accused in the said case. They stand convicted under Section 376(2)(b), (c) & (g) of IPC and they are sentenced to undergo 10 years’ Rigorous Imprisonment and to pay a fine of Rs.1,000/- each, in default of payment to undergo one year’ Rigorous Imprisonment. The Fifth Accused in this case had been acquitted by the Trial Court. Aggrieved by the conviction, the Accused 1 to 4 have preferred the above mentioned Criminal Appeals. 2. The brief facts of the prosecution case is that P.W.1 – Reeta alias Reeta Mary who was above 18 years at the relevant time, was staying along with her mother Leelavathy .– P.W.2 in the house of her elder sister at Erode for one month. One day as P.W.1 has beaten her sister’s daughter, in turn she was beaten by her sister. On the next day, deciding to leave that house, P.W.1 asked her mother to pack up her dresses and then went out of the house for selling her silver anklets. She went to the shop of Narayanavasalu and at that time, one Anandaraj came there and promised her to get a job and took her to Attur. He sold her to one Eswari and the said Eswari compelled her for prostitution. In the house of Eswari, one constable by name Murugesan raped her. On the next day, she was again taken to Tindivanam by Anand and Kavitha and she was sold to one Shanthi, Shanthi also compelled P.W.1 for prostitution. Four youngsters came to the house of Shanthi. P.W.37 is one among them. P.W.1 cried and requested them to rescue her. P.W.1 was taken in a bus by the youngsters. At that time, the pimps came there and stopped the bus and caught hold of P.W.37 – Lakshmanan and P.W.1 .– Reeta and made them to get down from the bus. P.W.1 and others were handed over in the Tindivanam police station. P.W.1 cried and requested them to rescue her. P.W.1 was taken in a bus by the youngsters. At that time, the pimps came there and stopped the bus and caught hold of P.W.37 – Lakshmanan and P.W.1 .– Reeta and made them to get down from the bus. P.W.1 and others were handed over in the Tindivanam police station. P.W.3 , Inspector of Police who was in charge of the Tindivanam Police Station received a Complaint from one Velu on 29.10.2001 and registered a case in Crime No.1115 of 2001 under Immoral Traffic (Prevention) Act and prepared Ex.P.4-First Information Report. He arrested P.W.1 and sent her for judicial custody with Ex.P.3-Remand Report to the Judicial Magistrate-I, Tindivanam. They also registered a case under Prohibition Act against P.W.37 and his friends and they were also sent to Judicial custody by Judicial Magistrate-I, Tindivanam. 3. P.W.13, Judicial Magistrate-I, Tindivanam who was in her residence enquired P.W.1 who was produced before her and P.W.1 gave her date of birth as 01.07.1982, P.W.13, advised P.W.1 that her profession was not a good one. She also noted that P.W.1 had no injury and then she remanded P.W.1 for 15 days. P.W.37 and others were also remanded for the offence under Prohibition Act. P.W.5-Woman Constable along with P.W.4 Head Constable took P.W.1 to Sub-Jail, Tindivanam and she was handed over in the Sub-Jail, gingee wherein the First Accused/Lazar was working as a Head warder in the cadre of I-Grade Constable. The Accused 2 to 4 were also working as jail warders in the cadre of II-Grade Constable. The Third and Fourth Accused were on duty. P.W.1 was confined in Cell No.9. The Fourth Accused went to the house of P.W.6-part time Female Warder and requested her to come to the Sub-Jail Gingee, as P.W.1-Remand Prisoner was admitted in the Jail. P.W.6 went inside the Cell No.9 and she made arrangement for drinking water and then left the Jail premises. P.W.7-Ekambaram who was confined in Cell No.11, saw one person sitting in the open area in front of Cell No.11. At about 11,00 p.m., he saw the First Accused who had gone to sleep inside the mosquito net. His son was talking with the fourth Accused for a long time. After some time, he heard the sound of opening of the gate and saw the Second Accused who was not on duty, entering into the Sub-Jail. 4. At about 11,00 p.m., he saw the First Accused who had gone to sleep inside the mosquito net. His son was talking with the fourth Accused for a long time. After some time, he heard the sound of opening of the gate and saw the Second Accused who was not on duty, entering into the Sub-Jail. 4. In the mid night, P.W.1 heard the noise of opening the door of her Cell and found the Second Accused entering into the cell along with Accused 1, 3 and 4. The Accused 1 to 4 asked her to remove her dress and as she refused, she was kicked and she fell down. Then the Accused 1, 3 and 4 left the room and the Second Accused alone was inside the cell. Due to fear, P.W.1 removed her dress. Then the Second Accused caught hold of her breast by lying on her and also kissed on her face. The Second Accused raped her. Then he left the room and threatened her not to divulge this matter to anyone else. Then, the Fourth Accused entered into the room who also raped P.W.1. Then the Third Accused also done the same thing. Lastly, the First Accused raped P.W.1 and went out. P.W.1 was weeping through out the night without sleeping. 5. On the next day morning, a Female Warder by name Kannamma came to the Sub Jail and P.W.7 asked her to bring tea. P.W.1 was not in a position to walk and all the prisoners were supplied with tea. At about 3.00 p.m., P.W.6 informed P.W.8 warder that P.W.1 was suffering from fever. At about 4.00 p.m., P.W.1 was sent to Government Hospital accompanied by P.W.7-Female Warder and the 5th Accused-Male Warder. 6. P.W.10 – Dr. Madhavan, Civil Assistant Surgeon, Government Hospital, Gingee examined P.W.1 at about 4.45 p.m., and gave her treatment. He made entry in Ex.P.19. P.W.21 an Advocate practicing in Tindivanam filed Ex.P.12 Petition to advance hearing and Ex.P.13 admission Petition before the Court, since Ex.P.11 charge-sheet was filed. Then the learned Magistrate P.W.13 sent Ex.P.13 memo to the Superintendent, Sub-Jail, Gingee to produce P.W.1 before the Court on 31.10.2001. On 31.10.2001 at about 11.15 p.m., P.W.5-Woman Constable went to the Sub-Jail, Gingee and brought out P.W.1 for producing her in the Court. P.W.5 found P.W.1 with the wet hair and wet midi skirt and also upper skirt being wet. On 31.10.2001 at about 11.15 p.m., P.W.5-Woman Constable went to the Sub-Jail, Gingee and brought out P.W.1 for producing her in the Court. P.W.5 found P.W.1 with the wet hair and wet midi skirt and also upper skirt being wet. When she enquired, the Fifth Accused informed that P.W.1 has passed urine in her skirt itself. Then, P.W.5 had taken P.W.1 to bus stand and she took P.W.1 to a nearby small textile shop and purchased one pantie, towel and skirt from the shop of P.W.12 and asked P.W.1 to wear them in the shop itself. Then she took P.W.1 to Tindivanam and got down at Gingee bus top and went to the Court of Judicial Magistrate-I, Tindivanam. 7. P.W.45, Advocate, who came to the Court on 31.10.2001 at about 12.30 p.m., saw P.W.1 walking with the help of the Woman Head Constable. He found vast difference in her health condition, since he had seen her already on 29.02.2001. When P.W.1 was asked as to what happened, he was informed that one Jeyabalan raped her in the jail. When he asked P.W.1, whether one person done that act or any other person also was involved, P.W.1 answered by showing her six fingers. Then P.W.45 prepared Petitions and sent them to Governor, Human rights Commission, Chief Minister, Jail Authorities and District Collector through fax. 8. P.W.13, learned Judicial Magistrate-I, Tindivanam enquired P.W.1 at about 3.30 p.m., but P.W.1 did not answer properly. Again at 5.30 p.m., P.W.13 enquired P.W.1 on the basis of the admission petition filed by her Advocate to which P.W.1 had not replied, and she was not in a position to stand. Suspecting something, P.W.13 prepared Letter – Ex.P.15 addressed to duty Medical Officer, Government Hospital, Villupuram and sent P.W.1 for medical examination. As per Ex.P.15, the learned Magistrate wanted to know whether she had been subjected to sexual harassment and also regarding her mental condition. Then P.W.14, Civil Surgeon, government Hospital, examined P.W.1. P.W.14 admitted her in maternal ward and examined her and issued Ex.P.17 – Accident Register copy. P.W.15 – Doctor examined P.W.1 on 01.11.2001 at about 10.00 a.m., and she found the patient/ P.W.1 malingering and not co-operating. P.W.1 was referred to psychiatric opinion. P.W.15 issued Accident Register – Ex.P.16. On 01.11.2001 at about 11.20 a.m., P.W.16 – Doctor, Civil Surgeon, Government Head Quarters Hospital examined P.W.1. P.W.15 – Doctor examined P.W.1 on 01.11.2001 at about 10.00 a.m., and she found the patient/ P.W.1 malingering and not co-operating. P.W.1 was referred to psychiatric opinion. P.W.15 issued Accident Register – Ex.P.16. On 01.11.2001 at about 11.20 a.m., P.W.16 – Doctor, Civil Surgeon, Government Head Quarters Hospital examined P.W.1. P.W.16 found that to ascertain her mental condition, she must be observed continuously for 45 days. P.W.16 gave advise to P.W.13 – Judicial Magistrate-I, Tindivanam to send P.W.1 to mental Hospital, Kilpauk, Chennai and he issued Ex.P.23 endorsement on the backside of Ex.P.16 – Accident Register. P.W.1 was produced before the learned Judicial Magistrate at 5.30 p.m., on 01.11.2001 along with Ex.P.16, Accident Register and Ex.P.23 endorsement. P.W.13 felt that it was not good to send her to Sub-Jail, Gingee, and therefore, she directed P.W.1 to Government Vigilance Home, Mylapore, Chennai. She also addressed Ex.P.19 to Inspector General of Prisons on 12.11.2001. 9. P.W.46 who was informed by “Peoples Watch” at Madurai, came to the Court on 01.11.2001 at 6.30 p.m., and met P.W.1 in the Court premises. P.W.1 informed her that she was raped in the Sub-Jail by four persons. P.W.46 accompanied P.W.1 to the Government Vigilance Home. P.W.1 was sent to Government mental hospital on 02.11.2001. P.W.50 Doctor, Government Mental Hospital, Kilpauk examined P.W.1. On 03.11.2001, P.W.46 went to Government Mental Hospital and met P.W.1 and found that she was affected mentally. She instructed P.W.45 to file a Bail Application and bail was ordered by the learned Judicial Magistrate. On 06.11.2001, P.W.1 was released from the Government Vigilance Home, Mylapore. After release, as her health condition was deteriorated, she was taken to the house of Prof. Kalyani at Tindivanam, and thereafter she was taken to Madurai. P.W.2 mother of P.W.1 and P.W.46 took P.W.1 to Doctor P.W.52 at Anadapriya Hospital. P.W.52 examined P.W.1 and found P.W.1 being conscious, but in angry mood. Thereafter, P.W.1 was taken to Government Rajaji Hospital, Madurai on 08.11.2001. P.W.29 – Dr. Jayaraj, Civil Assistant Surgeon, Government Rajaji Hospital, Madurai examined P.W.1 and found the following injuries: 1. 5x4x1 cms contusion on left leg. 2. 3x2 cms abrasion on both side of chest. 3. 2x2x1 cms lacerated injury at left leg. Ex.P.25 is the accident register copy issued by P.W.29. 10. P.W.29 – Dr. Jayaraj, Civil Assistant Surgeon, Government Rajaji Hospital, Madurai examined P.W.1 and found the following injuries: 1. 5x4x1 cms contusion on left leg. 2. 3x2 cms abrasion on both side of chest. 3. 2x2x1 cms lacerated injury at left leg. Ex.P.25 is the accident register copy issued by P.W.29. 10. P.W.30-Doctor, Civil Surgeon Government Rajaji Hospital also examined P.W.1 at 12.50 p.m., on 08.11.2001 and she also found the following injuries: (i) Multiple scratch marks on both breasts. (ii) Contusion on the right upper arm. (iii) 2x1x1 cm lacerated wound on her left leg. (iv) Multiple small abrasions present on her right leg. 11. On the same day, P.W.31 – Dr. Subbulakshmi, assistant professor in the Gynecology also examined P.W.1 on 08.11.2001 at about 5.15 p.m., P.W.32, Doctor examined P.W.1 on 09.11.2001 at about 5.15 p.m. 12. P.W.48, Assistant Superintendent of Police, Gingee, received Ex.P.28, V.H.F. Message from Madhichiyam Police Station in which it was stated that P.W.1 was raped at Sub-Jail, Gingee, and was taking treatment in the Government Rajaji Hospital, Madurai. He went to the hospital and met P.W.2 – Leelavathy in Ward No.99. As P.W.1 was not in a position to give Complaint, he requested P.W.2 to give Complaint, but P.W.2 replied that she would give Complaint only after getting consent from “Peoples Watch”. P.W.48 on receiving Ex.P.1-Complaint from P.W.2, directed P.W.23-Inspector of Police to register a case and investigate. P.W.23 registered a case in Crime No.679 of 2001 and prepared Ex.P.31 – First Information Report. P.W.49 – Revenue Divisional Officer, on receiving instruction from the District Collector, Villupuram, conducted an enquiry regarding the alleged rape in the Sub-Jail premises, Gingee. He enquired the person in and around and also found P.W.1 was not in a position to give a statement. He submitted his report Ex.P.79 to the District Collector, Villupuram. 13. P.W.45 and others filed a Petition before the Honourable High Court, Madras to transfer the enquiry from the Revenue Divisional Officer, Gingee to the file of Central Bureau of Investigation. The Honourable High Court directed the Inspector General of Prison to conduct an enquiry and after receiving report from the Inspector General, Ms. G. Thilagavathy, on 04.12.2001, passed Ex.P.90 orders in Crl.O.P. Nos.24090 and 24278 of 2001, transferring the enquiry to the Special Investigation Team took up the investigation. P.Ws.54, 55 and 56, investigated the matter. The Honourable High Court directed the Inspector General of Prison to conduct an enquiry and after receiving report from the Inspector General, Ms. G. Thilagavathy, on 04.12.2001, passed Ex.P.90 orders in Crl.O.P. Nos.24090 and 24278 of 2001, transferring the enquiry to the Special Investigation Team took up the investigation. P.Ws.54, 55 and 56, investigated the matter. P.W.56 could not examine P.W.1 as she was not in a position to communicate. The Accused were arrested. Subsequently on 15.02.2002, he recorded her statement in the Chennai Government Hospital. A requisition was given to conduct an identification parade. On 19.02.2002, Test identification Parade was conducted by P.W.42-Judicial Magistrate-II, Tindivanam. P.W.1 identified only the Accused 2 to 4 and she did not identify Accused 1 and 5. P.W.56 after completion of the investigation by his team, laid the Final Report against the Accused 1 to 5. 14. In order to establish its case, the prosecution has examined P.Ws.1 to 30, marked Exs.P1 to P.92. Superintendent of Central Prison, Cuddalore was examined as C.W.1 and Superintendent of Central Prison, Chennai was examined as C.W.2 by the Court. When the Accused were questioned under Section 313, Cr.P.C, they denied their complicity and each Accused 1 to 4 filed separate Written Statement. No defence witness was examined, but on the side of the defence, Exs.D.1 to D.28 were marked during the cross-examination of the witnesses. The Trial Court after analyzing the evidence, acquitted the 5th Accused from all the charges and convicted Accused 1 to 4 only under Sections 376, IPC. 15. Mr. R, Shanmughasundaram, learned Senior Counsel appearing for the Second Accused/Appellant in Crl. A. No.913 of 2006 submitted that P.W.1 victim’s oral evidence alone is available and the same is not trustworthy. She revealed about the occurrence and the names of the Accused only for the first time to P.W.56 Investigating Officer on 15.02.2002, i.e., two and half months after the occurrence. During Test Identification Parade held on 21.2.2001 P.W.1 identified only three of the Accused, but she had given names of all the four persons while her statement was recorded by the learned Magistrate under Section 164(5), Cr.P.C on 25.02.2002. During Test Identification Parade held on 21.2.2001 P.W.1 identified only three of the Accused, but she had given names of all the four persons while her statement was recorded by the learned Magistrate under Section 164(5), Cr.P.C on 25.02.2002. P.W.45, Advocate says that on 31.10.2001, he was informed by P.W.1 that she was ravished by A.2 and six persons, but P.W.1 had not stated that she informed P.W.45 about the occurrence and P.W.45 though sent a Complaint to Chief Minister Cell, etc., he did not file a Complaint for investigation under Section 156(3), Cr.P.C and he had not filed any Complaint before the learned Magistrate, P.W.13 who had remanded P.W.1 to the Judicial Custody. 16. The learned Senior Counsel further submitted that P.W.13 learned Magistrate had stated that P.W.1 informed her that she was raped by four persons in Sub-jail, Gingee. She also failed to order for any investigation. On 31.01.2001, when she sent P.W.1 for medical examination, it was not mentioned in Ex.P.15 about the rape in the Sub-Jail, Gingee. P.W.1 victim also has not stated that she informed the Magistrate P.W.13 about the rape. P.W.46 who is the Social Worker though had stated that she received information from “People’s Watch, Madurai” on 01.11.2001, and therefore met P.W.1 in Court, there is no supporting material for her version. She had only arranged for Bail Petition to be filed for P.W.1. When P.W.1 was taken to the Doctor accompanied by P.W.2, Doctor was informed only that P.W.1 was assaulted by four unknown persons at Attur Sub-Jail, and there was no allegation of rape. The learned Senior Counsel also drew the attention of this Court to the evidence of P.W.48 – Assistant Superintendent of Police, who had stated that P.W.2 mother of P.W.1 informed that she would not give any complaint unless someone come from “People’s Watch, Madurai.” The Inspector General of Prison who conducted an enquiry as per the direction of the High Court was not examined as a witness and the report was not also filed before the Trial Court and an adverse inference can be drawn in favour of the Accused. The CBCID commenced investigation on 05.12.2001, but immediately arrested the Accused on 06.12.2001 without any material. The enquiry held by the Revenue Divisional Officer also did not implicate any of the Accused. The CBCID commenced investigation on 05.12.2001, but immediately arrested the Accused on 06.12.2001 without any material. The enquiry held by the Revenue Divisional Officer also did not implicate any of the Accused. Even in the direction order passed by the Honourable High Court in Ex.P.90, it was not stated about the rape in the Sub-Jail. The learned Senior Counsel further submitted that the Second Accused was not on duty on the date of occurrence and no occurrence took place in the Cell No.9. Only for the convenience of the prosecution case, though P.W.1 was confined in Cell No.2, the scene of occurrence was shifted to Cell no.9 and to suit the prosecution case, the prison records were tampered and the allegations were thrown against the Accused that the records were tampered, but the Accused have been acquitted by the Trial Court from the charges for tampering the records. The lawyers who were interested in this case wanted to get some compensation and therefore, that case had been cooked up. The learned Senior Counsel also pointed out that the extra-judicial confession said to have been given by the Second Accused to an Advocate -P.W.25 should not have been relied on by the Trial Court. On reading the evidence of P.W.25 it shows that his evidence is false and even otherwise, P.W.25 being an Advocate, he is prevented from disclosing the professional communication made to him as per Section 126 of the Indian Evidence Act. 17. Mr.K. Rajasekaran, learned Counsel appearing for the Appellants A1; A.3 and A.4 in Crl.A. No.929 of 2010 submitted that the uncorroborated sole testimony of P.W.1 should not be accepted and P.W.1 had not sustained any injury and her medical evidence does not corroborate her version. There was no injury on the body of P.W.1 and there was no resistance on her part and as such her version that she was forcibly raped is false. 18. Per contra, learned Government Advocate (Criminal side) submitted that P.W.1 victim had no animosity against the Accused 1 to 4 to depose falsely against them. There was no injury on the body of P.W.1 and there was no resistance on her part and as such her version that she was forcibly raped is false. 18. Per contra, learned Government Advocate (Criminal side) submitted that P.W.1 victim had no animosity against the Accused 1 to 4 to depose falsely against them. P.W.7 who was also a remand prisoner at the relevant time in the same Sub-Jail, Gingee, had spoken about the presence of the Second Accused also in the night hours in the Jail though he was not on duty and he had spoken about the condition of health of P.W.1 before the occurrence and after the occurrence. P.W.13 learned Magistrate also who had seen victim P.W.1 in a good health condition at the time of remanding her in judicial custody, finding her not in good health on 31.02.2001, sent her for medical examination and in Ex.P.15 letter sent by her to the duty Medical Officer, Government Hospital, Villupuram, she had mentioned that victim was sent for medical examination to verify whether she had been sexually assaulted. The learned Government Advocate also pointed out that the evidence of P.W.6 shows that there was no female warder in the Jail at the time of occurrence. The learned Government Advocate (Criminal side) further submitted that P.W.45 an Advocate who had seen P.W.1, on enquiring her, had come to know that P.W.1, was sexually assaulted in Sub-Jail, Gingee and immediately he sent messages to authorities through fax. P.W.45 also had no specific animosity against the Second Accused and he had deposed that it was P.W.1 who informed him about the Second Accused and others rapping her. The learned Government Advocate (Criminal side) also pointed out that even as per Ex.P.1 Complaint given by P.W.2 mother of P.W.1 dated 12.01.2001, no one was specifically named as Accused and this would show that no one had any specific interest to implicate any one falsely in this case. The learned Government Advocate (Criminal side) also submitted that initially steps were taken by the learned Magistrate P.W.13 and P.W.45 Advocate also took steps to inform the authorities and a Public Interest Litigation Petition was filed before the High Court. The learned Government Advocate (Criminal side) also submitted that initially steps were taken by the learned Magistrate P.W.13 and P.W.45 Advocate also took steps to inform the authorities and a Public Interest Litigation Petition was filed before the High Court. The High Court after receiving report of Inspector General of Prison, had directed the Revenue Divisional Officer, Tindivanam, to hand over the entire file to the Superintendent, CBCID, Chennai, for investigation by a team of CBCID Officers. The learned Government Advocate (Criminal Side) also submitted that P.W.1 becoming a victim of rape, while confined, in prison, her evidence could be accepted even without any corroboration. 19. The learned Government Advocate (Criminal Side) “fairly conceded that the evidence of P.W.25 could be eschewed from consideration, since Section 126 of the Indian Evidence Act stands on the way of accepting his evidence. 20. This Court considered the submissions made by all the parties and perused the records. 21. P.W.1-Reeta is the victim in this case. According to her evidence before the Court while she was confined in Sub-Jail, Gingee, in Cell No.9, on 29.10.2001 in the mid night while she was sleeping, she heard the noise of opening the gate. She saw the second Accused opening the door entering into the room. The other three Accused followed him. She was asked to remove her dress and as she refused, she was kicked by the Accused and she fell down. Thereafter, the Second Accused alone was in the room. The other Accused went out of the room. Thereafter, she was raped by the second Accused. Then the remaining three Accused one by one came into the room and raped her. P.W.1 identified the Accused 1 to 4 in the Court and only Accused 2 to 4 before the Test Identification Parade. The question that now arises for consideration is whether the conviction on the Accused 1 to 4 by the Trial Court for the offence under Section 376, IPC accepting the evidence of P.W.1 is sustainable. 22. At the outset, it must be said that the Accused have denied the occurrence and according to the Accused, P.W.1 was not confined in Cell No.9, but she was confined in Cell No.2. P.W.1 had no personal animosity against anyone of the Accused. While so, the question arises as to why the evidence of P.W.1 should be rejected. 22. At the outset, it must be said that the Accused have denied the occurrence and according to the Accused, P.W.1 was not confined in Cell No.9, but she was confined in Cell No.2. P.W.1 had no personal animosity against anyone of the Accused. While so, the question arises as to why the evidence of P.W.1 should be rejected. P.W.7-Ekambaram was also confined on the same day in Cell No.11. He saw P.W.1 going to Cell No.9 after taking water in a plastic container from the water tank. He had seen the Third Accused in the uniform and the Fourth Accused wearing lungi and shirt. The First Accused also was sitting in front of his room. During mid night he heard the noise of opening the gate, the Second Accused came inside the Jail wearing white dhoti and a full sleeve shirt. He enquired P.W.7 as to how many persons were confined in his cell and he replied that six persons were confined. On the next day morning, he saw P.W.1 sitting in front of Cell No.9, but she was wearing a different dress. On the next day, after 9.00 p.m., P.W.1 was brought and confined in Cell No.10. P.W.7 also spoken about the quarrel among Accused 1 and 2. The evidence of P.W.7 corroborates the evidence of P.W.1 to the extent that she was confined in Cell No.9 there was no enmity between P.W.7 and the Accused. 23. It is to be seen that after the incident in the prison, P.W.1 was taken before P.W.13-Judicial Magistrate-I, Tindivanam on 31.10.2001 at 12.30 p.m. P.W.5-Woman Head Constable took P.W.1 from the Prison to the Court. On seeing the bad condition of P.W.1, P.W.13 has enquired the Accused on her own. P.W.1 informed the Magistrate that she was ravished by four persons and the learned Magistrate also noticed an injury on the left leg. P.W.13 sent P.W.1 for medical examination through letter Ex.P.15. In Ex.P.15, it is mentioned as follows: “I am sending the Accused Selvi Reeta, D/o.Soundarrajan concerned in Cr.No.1115/2001 under Section 8(b) PIT Act of Tindivanam PS and note down any injuries sustained by her and also to make examination whether she has been sexually assaulted and whether she is mentally alright.” 24. In Ex.P.15, it is mentioned as follows: “I am sending the Accused Selvi Reeta, D/o.Soundarrajan concerned in Cr.No.1115/2001 under Section 8(b) PIT Act of Tindivanam PS and note down any injuries sustained by her and also to make examination whether she has been sexually assaulted and whether she is mentally alright.” 24. Though the learned Magistrate had not given the details of the statement made by P.W.1 to her regarding the sexual assault, from the fact that the learned magistrate has sent P.W.1 victim to the hospital for examination whether she had been sexually assaulted establishes the fact that the Magistrate has got information about the sexual assault on P.W.1. On the next day, as the Magistrate received the reports from the Doctors P.Ws.15 and 16, she was referred to Psychiatrist for opinion, P.W.13 sent P.W.1 to Government Vigilance Home, Mylapore, with a request to send her to Kilpauk Mental Hospital for further examination. Ex.P.18 is the letter sent by the learned Magistrate dated 01.11.2001 to the Superintendent, Government Vigilance Home, Madurai. In Ex.P.18, the learned Magistrate had specifically mentioned that it was unsafe for the Accused (P.W.1) in the Sub-Jail, Gingee and for the safe custody, she was sent to Home. On 12.11.2001, the learned Magistrate P.W.13 sent a letter to the Inspector General of Prison, Chennai, in which, the learned Magistrate had clearly stated that she enquired P.W.1 on 31.10.2001, and she also mentioned that she suspected that P.W.1 had been spoiled in the Sub-Jail, Gingee. 25. This Court does not find any reason to reject the evidence of P.W.13 who had stated that while she enquired P.W.1 on 31.10.2001, she informed the learned magistrate that she was spoiled by four persons in the prison. Ex.P.15 dated 31.10.2001 and Exs.P.18 dated 01.11.2001 supports the version of P.W.13. The evidence of P.W.13 shows that there had been some occurrence in the Sub-Jail while P.W.1 was confined. 26. Apart from the evidence of P.W.13 the evidence of P.W.45-Advocate who is practicing in the same Court had stated that he saw P.W.1 in the Court on 31.10.2001 and at that time, he was informed by P.W.1 that she was spoiled by Jeyapal (A.2) and others. Immediately, he had sent the Complaints to the Governor, Human Rights Commission, Chief Minister, Jail Authorities and District Collector through fax. Immediately, he had sent the Complaints to the Governor, Human Rights Commission, Chief Minister, Jail Authorities and District Collector through fax. Of course, copy of the complaint has not been marked, but P.W.46 – Social Worker who is also a lady Advocate having received message on 01.11.2001, that P.W.1 was subjected to sexual assault in the Sub-Jail, Gingee had come to Court on 01.11.2001 and met P.W.1 at 6.30 p.m. She was also informed by P.W.1 about the rape by four persons in the Sub-Jail, Gingee. P.W.46 who had also no animosity against anyone of the Accused had given evidence stating that P.W.1 informed her about the occurrence in the Sub-Jail. In fact, it was P.W.46 who took steps to get bail for P.W.1 and also it was informed to P.W.2 who is the mother of P.W.1 and a Complaint was sent to Police through P.W.2. Steps were also taken to file an Application before the High Court for transferring the investigation to CBCID. The evidence of P.Ws13, 45 and 46 strengthen the evidence of P.W.1 victim who speak about the rape in the Sub-Jail, Gingee. One of the documents Ex.D.22 marked by the Accused is a letter sent by the Inspector of Police, Gingee Police Station to Tahsildar, Gingee in which it is mentioned that the Lourdh Saviour, Advocate (P.W.45) had sent a Complaint stating that P.W.1-Reeta who was confined in Sub-Jail, Gingee had been sexually assaulted by the Warder Jeyapal (A.2) and six other persons. Therefore, even from Ex.D.22, it is clear that P.W.1 had informed P.W.45-Advocate about the sexual assault on her in the Sub-Jail, Gingee where she was confined. 27. Though it was contended that P.W.1 – victim’s oral evidence alone is available and the same is not trustworthy and P.W.1 had not sustained any injury and there was no resistance on the part of P.W.1, it is well settled law, that the evidence of prosecutrix alone could be accepted depending on the facts and circumstances of the case if it inspires the confidence of the Court. No external injury was found on the body of the victim- P.W.1 and as such though it could be said that P.W.1 had not resisted the act of the Accused, she being alone confined in the cell due to fear she had made a passive submission. No external injury was found on the body of the victim- P.W.1 and as such though it could be said that P.W.1 had not resisted the act of the Accused, she being alone confined in the cell due to fear she had made a passive submission. The passive submission of the body could not be taken as consent given by the victim. All the more, it is not the case of the defence that there was a consent on the part of the victim but the Accused have totally denied the occurrence. Though P.W.1 had not sustained any external injury as a mark of violence, due to brutal act of more than one person, her health condition was deteriorated and she was not even able to walk and mentally upset. P.W.5 – Woman Constable, P.W.13 – Judicial Magistrate and P.W.45 have spoken about the physical health condition of the victim P.W.1 before going to the prison and subsequently on 31.01.2001. 28. Another contention that P.W.1 was examined by the Investigating Officer after two and half months and then only P.W.1 revealed the names of all the Accused affects the case of the prosecution is not acceptable, since P.W.1 had already informed the name of the Second Accused to P.W.45. P.W.45 also sent Complaint to various authorities which fact is supported by Ex.D1 also. One another contention that P.W.13 – learned Magistrate had not specifically mentioned in Ex.P.15 about the rape in the Sub-Jail, Gingee is also to be rejected, since in Ex.P.15, it is mentioned that P.W.1 has been sent for medical examination specifically to ascertain whether she had been sexually assaulted which would mean that there was an allegation of sexual assault. On the very next day, i.e., on 01.11.2001 in Ex.P.18, the learned Magistrate had stated that it was very unsafe for P.W.1 to be kept in the Sub-Jail, Gingee. 29. While P.W.2 took P.W.1 to Doctor mentioned in Ex.P.25-Accident Register that the patient is alleged to have been assaulted by four unknown persons at about time and date not known at Sub-Jail, Attur. Instead of ‘Sub-Jail, Gingee’, “Sub-Jail, Attur” is mentioned. This difference may not affect the case of the prosecution since the particulars were given to the Doctor not by P.W.1-victim who was disoriented at that time. Instead of ‘Sub-Jail, Gingee’, “Sub-Jail, Attur” is mentioned. This difference may not affect the case of the prosecution since the particulars were given to the Doctor not by P.W.1-victim who was disoriented at that time. Even as per Ex.P.25, Accident Register, the particulars which were given by P.W.2 being wrong would not affect the case of prosecution. The contention that P.W.2 mother of P.W.1 was not prepared to give complaint to P.W.48 immediately and she waited for the arrival of people from “Peoples Watch, Madurai” also would not affect the case of the prosecution, since even in the Complaint Ex.P1 given by P.W.2 to the Police, names of any of the Accused was not specifically mentioned. Even as per Ex.P.31 in the Accused column, it is only mentioned as “Jail Warders, Gingee Sub-Jail.” The non-examination of the Inspector General of Prisons who conducted the enquiry also in any manner does not affect the case of the prosecution. As per Ex.P.90, the Honourable High Court only after getting the report of the Inspector General of Prison and after perusing it only ordered for transfer of investigation to the CBCID and immediately steps were also taken by the Investigating Team , CBCID to arrest the accused. The contention on behalf of the Second Accused that he was not on duty on the date of occurrence and as such he did not take part in the occurrence is only to be rejected, since P.W.1 had specifically given evidence against the Second Accused and the presence of Second Accused on the date of occurrence is also spoken by P.W.7 and it is only the name of the Second Accused which had come out first in this case as per the evidence of P.W.45-Advocate and also as per Ex.D.22. 30. Though the Trial Court had relied on the evidence of P.W.25, an Advocate to whom the Second Accused is said to have given an extra-judicial confession, this Court is not placing any reliance on the evidence of P.W.25. According to P.W.25, while he was in the Advocate’s office, the second Accused visited his office on 09.11.2001 and informed him about the occurrence and he admitted about the raping the victim- P.W.1. Though the Second Accused met him on 09.11.2001, he had not immediately informed the police and, only on 13.12.2001, he informed to the Deputy Superintendent of Police. According to P.W.25, while he was in the Advocate’s office, the second Accused visited his office on 09.11.2001 and informed him about the occurrence and he admitted about the raping the victim- P.W.1. Though the Second Accused met him on 09.11.2001, he had not immediately informed the police and, only on 13.12.2001, he informed to the Deputy Superintendent of Police. P.W.25 also do not say as to why the Second Accused came to his office. P.W.25 had not made it clear whether the Second Accused approached him as a client or not. In the cross-examination, he had stated that he was conducting one MCOP case for the Second Accused. It appears that earlier there was relation between P.W.25 and the Second Accused as Advocate and client. If the Second Accused had approached P.W.25 in the capacity of the client, then P.W.25 being and Advocate should not have revealed the communication made to him. If it is claimed that it was not a professional contact, then P.W.25 being a respectable person in the society ought to have informed to the Police. Either way, the evidence of P.W.25 is unacceptable. 31. Section 126 of the Indian Evidence Act is as follows: “126. Professional Communications.- No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professions employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment: Provided that nothing in this Section shall protect from disclosure. (1) Any such communications made in furtherance of any (illegal) purpose. (2) Any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment. It is material whether the attention of such barrister, (pleader), Attorney or vakil was or was not directed to such fact by or on behalf of his client. Explanation.- The obligation started in this section continues after the employment has ceased. 32. It is material whether the attention of such barrister, (pleader), Attorney or vakil was or was not directed to such fact by or on behalf of his client. Explanation.- The obligation started in this section continues after the employment has ceased. 32. Of course as per the above provision, if the communication is made in furtherance of a Criminal purpose, it is not protected from disclosure. It is also the evidence of P.W.25 that the Second Accused told him that if anybody gives evidence against him, he would be done to death. If at all, only this portion of the evidence given by P.W.25 would be admissible and not other part of the evidence that the Second Accused confessed regarding the occurrence. This Court is not appreciating the manner in which P.W.25 had come forward to give evidence against the Second Accused. Even eschewing the evidence of P.W.25, the other materials are available against the Second Accused. 33. Though this Court concludes firmly that the prosecution had established the fact that while P.W.1 was confined in Sub-Jail, Gingee she had been raped by the Second Accused and some more persons, still the question arises as to whether prosecution established beyond reasonable doubt that all the Accused before the Court had taken part in raping the victim- P.W.1. Though the Second Accused was not on duty on the date of occurrence, his presence at the time of occurrence in the Jail has been established and his name had come even at the earliest stage in taking part in the occurrence. The names of the other Accused came only at the latter stage. The Accused 1 to 4 were arrested by the police on 06.12.2001. The Test Identification Parade was held by the learned Magistrate on 21.02.2002. The parade was held for the Accused 1 to 5. Among the Accused 1 to 5, P.W.1 did not identify the Accused 1 to 5 alone even though three chances were given to her. The Trial Court already acquitted the Fifth Accused for the reason he was not identified even while giving evidence before the Court by P.W.1. Of course, identifying a person before the Court is a substantive evidence, but at the same time it has to be seen that when P.W.1 was not able to identify the First Accused in the Test Identification Parade, though three chances were given. Of course, identifying a person before the Court is a substantive evidence, but at the same time it has to be seen that when P.W.1 was not able to identify the First Accused in the Test Identification Parade, though three chances were given. This Court feels that it would be unsafe to accept the identification of the First Accused by P.W.1 before the Court. Though the occurrence is proved by the prosecution, the participation of the First Accused only becomes doubtful in view of the fact that P.W.1 had failed to identify the First Accused during the Test Identification Parade. It is also the evidence of P.W.7 prisoner that on the next day to the occurrence, there was a quarrel between First Accused and the Second Accused and the First Accused rebuked the Second Accused stating that while she was admitted in the prison, she was in good health and the Second Accused was responsible for the spoiled health condition of the victim. It is the further evidence of P.W.7 that the Second Accused told the First Accused that the First Accused had no responsibility and he could leave the place. Though the occurrence of rape of the victim- P.W.1 in the Sub-Jail, Gingee, has been proved by the prosecution, this Court is giving the benefit of doubt to the First Accused/Fist Appellant alone in Crl. A. No.929 of 2006. 34. In the result, the conviction and sentence imposed on the First Accused/First Appellant. Viz., Lazar in Crl.A.No.929 of 2006 are set aside and the Appeal in respect of the First Accused/First Appellant alone is allowed. 35. In respect of the Second Accused/Appellant in Crl. A. No.913 of 2006 and Accused Nos.3 and 4/Appellants 2 and 3 in Crl. A. No.929 of 2006 are concerned, the conviction and sentence imposed on them by the Trial Court are confirmed and the Appeals in respect of them are dismissed.