Judgment :- 1. The Accused Nos.1 and 2 in S.C.No.98 of 2006, which was tried and disposed of by the learned Sessions Judge, Magalir Neethimandram (Mahila Court), Coimbatore, are the appellants herein. The first appellant faced the charges of committing offences punishable under Sections 450, 376 and 506(ii) IPC, whereas the second appellant faced the trial for offences punishable under Sections 450, 376 r/w. 109 IPC and Sec. 506(ii) IPC. At the conclusion of trial, the trial judge held them guilty of the offences as per the charges, convicted them and imposed the following sentences: i) ten years rigorous imprisonment and a fine of Rs.1000/-, with a default sentence of one year simple imprisonment on each one of them for the offence under Section 450 IPC; ii) rigorous imprisonment for 10 years and a fine of Rs.1000/- with a default sentence of simple imprisonment for one year for the offence under Section 376 IPC on A1; iii) rigorous imprisonment for 10 years for the offence under Section 376 IPC and Section 376 r/w.109 IPC and iv) rigorous imprisonment for 3 years without fine, on both the appellants for the offence under Section 506(ii) IPC. The order of sentence also recites that the substantive sentences of imprisonment shall run concurrently, besides the period of sentence already undergone being set off in terms of Section 428 of the Code of Criminal Procedure. 2. Challenging the conviction as well as the sentence, the appellants have come forward with the present appeal on various grounds set out in the appeal petition. 3. The prosecution theory, in brief, is as follows: i) The alleged victim, aged about 10 years at the time of occurrence, is the daughter of PW3 - Marimuthu and PW4 - Nagammal. They were coolie workers residing at site No.45, Pillayar Nagar, Varuthiyangarpalayam Road, Kurumbampalayam, within the jurisdiction of M-3 - Kovilpalayam Police Station. P.W.4 was employed as a sanitary worker in the hospital and her husband P.W.3 was employed as a Watchman in the said hospital. At the time of occurrence, the victim was studying 4th Standard in the Government Middle School, Kurumbampalayam. P.W.2 - minor Ayyappan, is the younger brother of P.W.1. He was aged about 6 years at the time of alleged occurrence and was studying 1st standard in the very same school. At the time of occurrence, the victim was studying 4th Standard in the Government Middle School, Kurumbampalayam. P.W.2 - minor Ayyappan, is the younger brother of P.W.1. He was aged about 6 years at the time of alleged occurrence and was studying 1st standard in the very same school. ii) On 22.09.2005, at about 4.30p.m, P.Ws.1 and 2 came back to their house after attending classes in the school. P.W.3 and P.W.4 had gone out for doing coolie work. At that point of time, the appellants/accused entered the house and sent out P.W.2 after offering him snacks like murukku and chips. After sending out P.W.2, the second appellant Masanam hugged and kissed P.W.1. Outraged by the said act of the second appellant, P.W.1 cried and raised alarm. On hearing the same, P.W.2 came in, whereupon the second appellant caused a threat to kill them, if they ventured to raise alarm. Therefore, P.W.1 stopped crying aloud. Then the first appellant (A1) took P.W.1 to another room in the said house and asked her to remove her clothes. When she refused to do so, the first appellant threatened to kill her if she would offer resistance and asked her to lie on the cot. Out of fear, P.W.1 gave in to the pressures and the first appellant (A1) Ramesh committed rape on P.W.1 by having forcible intercourse with her, against her Will and despite her resistance. Out of the unbearable pain caused by the said act of Ramesh - the first appellant, PW1 cried aloud but she was silenced by the first appellant by causing threat to kill her. During the course of the said act, the thighs of P.W.1 got stained with a white discharge that came from the genital organ of the first appellant. PW1 felt awkward and hence washed it using water and then put on her clothes and came out of the room followed by the first appellant Ramesh. When she came out, the second appellant Masanam again hugged her and kissed her. Since the first appellant Ramesh, during the course of his act of committing rape on P.W.1, squeezed her breast, the same turned red due to contusion. P.W.1 also sustained abrasions over her right elbow and right side cheek. When she came out, the second appellant Masanam again hugged her and kissed her. Since the first appellant Ramesh, during the course of his act of committing rape on P.W.1, squeezed her breast, the same turned red due to contusion. P.W.1 also sustained abrasions over her right elbow and right side cheek. iii) After the said occurrence, both the appellants caused a threat to P.W.1 and P.W.2 that they would be done to death, if they ventured to reveal to their parents what happened on the said day. Because of the threat caused by the appellants, P.W.1 did not inform her parents of what happened to her on the date of occurrence. However, the said occurrence was informed by P.W.2 to his mother, namely P.W.4. When her mother warned P.W.1 and asked her to tell the truth, she revealed the truth to P.W.4. Thinking that the fact, if comes to light, would be a shame to the family, P.W.4 was making arrangements to administer a poisonous drink made by dissolving the powder made of cow dung. At that point of time, P.W.3 came there, prevented them from taking the said poison and made enquiries with P.Ws.1, 2 and 4, whereupon he was informed of the particulars of the occurrence. After coming to know the details of the occurrence, P.W.3-Marimuthu had consultation with the elders and Trade Union office bearers, namely Marudhachalam (P.W.8) and Sadhasivam. On their advice, P.W.3 - Marimuthu decided to lodge a complaint. Pursuant to such a decision, P.W.3, along with P.W.1, P.W.2 and P.W.4, went to Kovilpalayam Police Station where P.W.3 and P.W.4 jointly gave a written complaint under Ex.P1. iv) P.W.12 - Thiru.Rajagopal, the then Inspector of Police, Kovilpalayam Police Station received Ex.P1 complaint at 13.00 hrs on 27.09.2005 and registered a case against the appellants for offences punishable under Sections 376, 511, 506(ii) and 323 IPC, in Crime No.190 of 2005, for which Ex.P12 - FIR was prepared in the printed format. After sending the complaint and FIR to the jurisdictional Magistrate, P.W.12 himself took up the investigation of the case, examined P.W.1, P.W.2, P.W.3, P.W.8-Marudhachalam and one Sadasivam and recorded their statements on 27.09.2005 itself. On the same day at about 14.30 hours, the second appellant (Masanam) was arrested and sent for remand. After sending the complaint and FIR to the jurisdictional Magistrate, P.W.12 himself took up the investigation of the case, examined P.W.1, P.W.2, P.W.3, P.W.8-Marudhachalam and one Sadasivam and recorded their statements on 27.09.2005 itself. On the same day at about 14.30 hours, the second appellant (Masanam) was arrested and sent for remand. P.W.12 visited the place of occurrence at 06.30 p.m on 27.09.2005 and prepared a rough sketch under Ex.P13 and Observation Mahazar under Ex.P2 in the presence of P.W.5 Rayappan and one Chandran. v) Based on the requisition sent by the Investigating Officer to the Court, the learned Judicial Magistrate No.II, Coimbatore directed production of the victim girl P.W.1 for medical examination and accordingly, she was produced before P.W.6 - Dr.Geetha, Assistant Professor of Obstetrics and Gynaecology, Coimbatore Medical College Hospital. P.W.4, who accompanied her daughter when she was produced before the Medical Officer for examination, informed the Medical Officer (PW6) that her daughter P.W.1 was sexually assaulted by two persons by names Ramesh and Masanam on 24.09.2005 at about 04.00 p.m. P.W.6 examined P.W.1 and found an abrasion over the left elbow and tenderness on the right side of chest. She also found that P.W.1 was in pre-pubertal stage; that her vagina admitted only tip of a finger and that hymen was absent. It was also found that no injuries were found on the external genitalia. After the examination made by P.W.6, the victim P.W.1 was referred to a Paediatric Surgeon for opinion. She was admitted in the hospital for treatment on 27.09.2005 and discharged on 10.11.2005. The in-patient record has been produced on the side of the prosecution as Ex.P11. P.W.6 also issued Ex.P3 - Accident Register. Exs.P4, P5, P6, P7 are the statements of P.Ws.2, 3, 4 and 8 recorded 06.10.2005 under Section 164 Cr.P.C by P.W.7, the then Judicial Magistrate as per the orders of the Chief Judicial Magistrate, Coimbatore on. Ex.P8 was also recorded under Section 164 Cr.P.C by the said Magistrate as the statement of one Sadasivam. During the course of investigation, the first appellant Ramesh was arrested on 28.09.2005. Based on a requisition of the Investigating Officer, a Medical Board was constituted by the Dean of the Coimbatore Medical College Hospital and the appellants were examined by the Board and potency test was conducted for them on 10.11.2005. On such examination they were found to be potent. Based on a requisition of the Investigating Officer, a Medical Board was constituted by the Dean of the Coimbatore Medical College Hospital and the appellants were examined by the Board and potency test was conducted for them on 10.11.2005. On such examination they were found to be potent. During the course of investigation, the Investigating Officer obtained Ex.P10 Birth Certificate signed by P.W.10, the Corporation Sanitary Inspector and spoken to by P.W.9, the Zonal Sanitary Officer. On completion of investigation, P.W.12 submitted a final report alleging commission of offences punishable under Sections 450, 376 and 506(ii) by the first appellant herein/first accused and offences punishable under Sections 450, 376 r/w.109 and 506(ii) IPC by the second appellant herein/A2. 4. After the case was committed for trial, necessary charges were framed as indicated supra by the learned Sessions Judge, Magalir Neethimandram (Mahila Court), Coimbatore. Having the charges read over and explained, the appellants/A1 and A2 denied the charges and pleaded not guilty. In order to substantiate the prosecution case, P.Ws.1 to 12 were examined and Exs.P1 to P13 were marked on the side of the prosecution. No material object was produced. 5. After recording of evidence on the side of the prosecution was over, the learned trial Judge drew the attention of the appellants herein/accused to the incriminating materials found in the evidence adduced on the side of the prosecution and questioned them regarding the same under Section 313(1)(b) Cr.P.C. Besides denying the truth in the said evidence, the appellants herein/accused 1 and 2, also reiterated their stand that they were innocent and were falsely implicated. On the side of the appellants/accused, one witness was examined as D.W.1 and no document was marked. 6. The learned trial Judge, after hearing the arguments advanced on both sides, considered the evidence and on such consideration, came to the conclusion that the offences alleged as per the charges stood proved and accordingly convicted them and sentenced them as indicated supra. Challenging the conviction as well as the sentence the present appeal has been preferred by both the appellants (Accused Nos.1 and 2) on various grounds set out in the appeal petition. 7. Challenging the conviction as well as the sentence the present appeal has been preferred by both the appellants (Accused Nos.1 and 2) on various grounds set out in the appeal petition. 7. The point that arises for consideration in the appeal is: "Whether the prosecution has not proved the charges against the appellants/accused 1 and 2 beyond reasonable doubt, as contended by the appellants in this appeal and whether the judgment of the court below is liable to be interfered with in respect of both the conviction and sentence or in respect of the sentence alone?" 8. The submissions made by Mr.P.M.Duraisamy, learned counsel appearing for the appellants and Mr.I.Paul Nobel Devakumar, learned Government Advocate (Crl.side) representing the respondent were heard. The materials available on record in the form of typed-set of papers were also perused. 9. Advancing arguments on behalf of the appellants, Mr.P.M.Duraiswamy, learned counsel for the appellants, has submitted that the judgment of the court below convicting the appellants herein for the charge-sheeted offences, is contrary to law and weight of evidence; that the learned trial judge failed to properly consider the vital contradictions found in the evidence adduced on the side of the prosecution; that the court below failed to consider the fact that while the statements of the witnesses P.Ws.2 to 4 and P.W.8 were recorded under Section 164 Cr.P.C. by a Judicial Magistrate, no such statement of P.W.1, the alleged victim girl was recorded and that the court below failed to consider the possibility of P.W.1, having been tutored. The learned counsel for the appellants has also pointed out the fact that there was a long delay of five days after the alleged occurrence in lodging the complaint and contended that no acceptable explanation for the said delay was offered by the prosecution; that the absence of proper explanation, would vitiate the prosecution, especially in the light of the admission made by P.W.1 to the effect that the union office bearers were consulted and in accordance with their advice, the complaint was prepared and lodged; that the court below failed to note that the alleged victim (P.W.1) did not need any treatment for five days from the date of alleged occurrence till the date of complaint; that the injuries found noted in the Accident Register and spoken to by P.W.6 - Medical Officer were not of serious nature requiring treatment as an in-patient, that too for 14 days; that P.W.1 had been kept in the hospital as an in-patient in collusion with the doctors and police to falsely implicate the appellants for child rape; that even the Medical Officer (P.W.6) could notice only abrasions on the left elbow and left cheek, besides a reddish contusion on the right side of the chest and that the trial court would have rendered a decision against the prosecution and acquitted the appellants, had it properly considered the above said aspects. 10. 10. The learned counsel for the appellants has contended further that P.W.12-Investigating Officer made an admission that there was no external injury found on P.W.1 when he saw her for the first time on the date of complaint; that the court below failed to consider the probability of such simple injuries having been caused subsequent to the registration of the case and before ever P.W.1 was taken to the hospital; that even P.W.6-Medical Officer has not given a conclusive opinion as to whether P.W.1 was subjected to rape since no external injury could be found on the genitalia of P.W.1; that the court below failed to consider the absence of corroboration of P.W.1’s evidence by the testimony of P.W.6-Medical Officer; that the court below failed to note even the in-built contradiction found in the evidence of the Medical Officer (P.W.6) in stating that P.W.1’s vagina, at the time of her examination, admitted only the tip of the finger but, at the same time the hymen was absent; that many contradictions and imponderables showing the improbabilities of the prosecution case escaped the notice of the court below; that the court below ought to have held that the prosecution failed to prove its case beyond reasonable doubt and acquitted the appellants herein/accused and that hence this court, in exercise of its appellate power, should hold the judgment of the trial court convicting the appellants for the charge-sheeted offences to be discrepant and infirm, set aside the same and set the appellants at liberty by acquitting them of all the charge-sheeted offences. 11. 11. Per contra, it is the contention of Mr.I.Paul Nobel Devakumar, learned Government Advocate (Crl.Side) appearing for the respondent that the court below, on proper appreciation of evidence, arrived at a correct conclusion that the charges against the appellants herein/accused stood proved; that even though there was a delay of five days in lodging the complaint, such delay was properly explained; that clear and cogent evidence of P.W.1 alone shall be enough to hold the appellants herein/accused guilty of the offences for which charges were framed against them; that though a conviction in a rape case can be made solely based on the testimony of the victim, P.W.1’s evidence stands corroborated by the evidence of P.Ws.2 to 4 and the evidence of P.W.6-Medical Officer in this case; that the submissions made by the learned counsel for the appellants/accused should be rejected as based on supposed contradictions, which are minor and trivial without having the force of discrediting the prosecution theory or at least creating a reasonable doubt regarding the prosecution theory so that the accused can claim the benefit of such doubt; that the prosecution has proved its case beyond reasonable doubt and that hence the judgment of the trial court convicting the appellants herein/accused for the charge-sheeted offences, cannot be interfered with either in respect of conviction or in respect of sentence. 12. This court paid its anxious consideration to the above said submissions made on both sides. This court, in the light of the above said submissions made on either side, also considered the evidence on record, both oral and documentary and the reasoning incorporated by the court below in its judgment, which is assailed in this appeal. 13. The case of the prosecution is that on 22.09.2005, at about 4.30 p.m, both the appellants herein/accused trespassed in to the house of P.Ws.3 and 4 in order to commit rape on their minor daughter (P.W.1), who was then aged about 8 years; that the first appellant herein (A1) committed rape on P.W.1; that the second appellant herein (A2) committed abetment of the said act of the first appellant; that both of them also committed criminal intimidation by causing threat to P.Ws.1 and 2 to kill them, if they would venture to tell their parents about what happened to P.W.1 and that they had thus made themselves liable to be prosecuted and punished for the charge-sheeted offences indicated supra. 14. The alleged victim girl has deposed as P.W.1. Though her age was given as 10 years in the charge-sheet, the Investigating Officer, during investigation, has collected Ex.P10-Birth Certificate, in which her date of birth is found noted as 10.07.1997 and the registration of birth was made on 11.07.1997 itself. As there is no contra evidence, the said document shall be the conclusive proof of P.W.1’s date of birth. The occurrence is said to have taken place on 22.09.2005. The complaint was lodged on 27.09.2005. On the date of alleged occurrence and even as on the date of complaint, the alleged victim (P.W.1) had completed the age of 8 years and 2 months. The alleged victim has deposed as P.W.1 regarding the occurrence in which she was allegedly raped and she along with her brother was criminally intimidated by the appellants/accused. Of course she has given a vivid description of the alleged rape committed on her by the first appellant herein/first accused. Normally in case of sexual assault, we cannot expect corroboration from other witnesses and it shall be lawful for the court to base the conviction even on the uncorroborated testimony of the victim. But, the said witness (victim) being a child aged about 8 years as on the date of alleged occurrence, her evidence has to be cross-checked with that of the Medical Officer to find out the probability or possibility of P.W.1 having been subjected to such forcible sexual assault. In this case, as pointed out supra, P.W.1 had just completed the age of 8 years and 2 months as on the date of the alleged occurrence. Therefore, she could not have been subjected to sexual intercourse prior to the date of alleged occurrence and it is also not the case of the prosecution. Under such circumstances, if at all she was subjected to a sexual intercourse on the date of occurrence as alleged by the prosecution, the symptoms of the same could have been seen by the Medical Officer when she was examined on the date of complaint itself, namely on 27.09.2005. 15. According to the prosecution case, the complaint was lodged on 27.09.2005 at about 13.00 Hours. The complaint has been marked as Ex.P1 and the First Information Report has been marked as Ex.P12. 15. According to the prosecution case, the complaint was lodged on 27.09.2005 at about 13.00 Hours. The complaint has been marked as Ex.P1 and the First Information Report has been marked as Ex.P12. The alleged victim girl (P.W.1) is said to have been taken to the hospital at about 6.30 p.m on the date of complaint, namely 27.09.2005. The Accident Register has been marked as Ex.P3. It was said to be prepared at 6.30 p.m on 27.09.2005. It is not the evidence of P.W.6-Medical Officer, who prepared the Accident Register, nor has it been noted in Ex.P3 - Accident Register, that the alleged victim, namely P.W.1 was the person who informed the Medical Officer about the occurrence. The following injuries have been noted by P.W.6, the Medical Officer:- “1) Abrasion on the left elbow with no bleeding and 2) tenderness over the right side of the chest”. Apart from those two injuries, no other injury was found on P.W.1 by P.W.6 - Medical Officer. On examination of the private part of the alleged victim (P.W.1), the Medical Officer (P.W.6) has made note of the following aspects:- "The external genitalia was of a female pre-pubertal type; Vagina admitted the tip of the finger; No discharge was found and no injury was found." However the Medical Officer has noted that hymen was absent. 16. Let us forget about the observation of the Medical Officer regarding the absence of the hymen for the time being. If the said observation is omitted from the purview of consideration, all other injuries noted by the Medical Officer (P.W.6), would not be enough to show that the alleged victim (P.W.1) would have been raped. No opinion regarding the possibility of P.W.1 having been raped, has been incorporated in Ex.P3. On the other hand, without expressing any opinion, P.W.1 was referred to paediatric surgery ward for opinion regarding the injuries. It is also the evidence of P.W.6 that she, after examining P.W.1, referred her to paediatric surgery ward and thereafter P.W.1 was treated as an in-patient in the paediatric surgery ward. But, curiously no Medical Officer who treated her in the paediatric surgery ward has been examined as a witness on the side of the prosecution. The prosecution was content with examining P.W.6, who simply referred P.W.1 to the paediatric surgery ward, after recording the Accident Register, without giving any opinion regarding the injuries found on P.W.1. But, curiously no Medical Officer who treated her in the paediatric surgery ward has been examined as a witness on the side of the prosecution. The prosecution was content with examining P.W.6, who simply referred P.W.1 to the paediatric surgery ward, after recording the Accident Register, without giving any opinion regarding the injuries found on P.W.1. A consideration of the evidence of P.W.1 and Ex.P3 will show that the injuries were simple in nature for which no treatment as an in-patient would have been required. However, the alleged victim girl (P.W.1) seems to have been kept in the hospital as an in-patient for about 14 days i.e. from 27.09.2005 to 10.10.2005, the date on which she was discharged as per Ex.P11, the file relating to the treatment of P.W.1. All the clinical and laboratory tests did not prove any infection or other symptoms of the child having been subjected to forcible sexual assault. Perhaps that is the reason why the prosecution has not chosen to examine the Medical Officer who treated P.W.1 in the paediatric surgery ward. 17. P.W.6 in her evidence has also stated that the victim (P.W.1) who was admitted as an in-patient on 27.09.2005, was discharged from the hospital on 10.11.2005. The said evidence in her chief examination, which had been typed was subsequently corrected to 10.10.2005. However, in the cross examination she has admitted that in Ex.P3, the date of discharge has been noted as 10.11.2005. But she would try to say that the said date mentioned therein as date of discharge was wrong and the said date was not noted by her. It is pertinent to note that the victim (P.W.1) was not produced before learned Judicial Magistrate No.II, Coimbatore for recording her statement under Section 164 of Cr.P.C, though other witnesses, namely P.Ws.2 to 4 and P.W.8 were produced before the said Magistrate and their statements under Section 164 of Cr.P.C were recorded on 06.10.2005. The said statements have been marked as Exs.P4 to P8. The said statements have been marked as Exs.P4 to P8. In this regard, the learned counsel for the appellants has contended that only in order to avoid the statement of P.W.1 being recorded under Section 164 of Cr.P.C with a view to avoid any possible contradiction, P.W.1 had been unnecessarily kept as an in-patient in the hospital and the same was the reason why her statement was not sought to be recorded under Section 164 Cr.P.C. even after her discharge from the hospital. It has been noted in Ex.P3-Accident Register that the victim was admitted on 27.09.2005 and was discharged on 10.11.2005 i.e. after a period of 1= months. The final report was originally dated "9.11.2005". But the date was subsequently corrected to 02.12.2005 by putting a “2” before “9” in the date column and mechanically erasing “9” to show that the final report was prepared on 02.12.2005. The second page of the printed form of the final report contains the date “29.11.2005” under the signature of the Investigating Officer. The same was done, according to the learned counsel for the appellants, with a view to avoid the recording of the statement of the victim under Section 164 by a magistrate by showing that the victim was being treated in the hospital as an in-patient till the date of preparation of the final report. The final report was received in the court of the Jurisdictional Magistrate No.II, Coimbatore on 01.02.2006. The Inspector of Police, Kovilpalayam Police Station signed it and put the date as 30.11.2005. But in the first page of the printed form of final report (charge-sheet), the date was corrected as "02.12.2005" either from 09.11.2005 or from 29.11.2005. The above said discrepancies would make probable the contention of the learned counsel for the appellants that an attempt was made by the investigating agency to screen P.W.1 from being produced before the Judicial Magistrate during the course of investigation for having her statement recorded under Section 164 Cr.P.C. The same would at least create a reasonable suspicion that such an attempt was made by the Investigating Agency. 18. It should also be noticed that all the statements allegedly recorded by the Investigating Officer were received in the court below only on 01.02.2006 along with the charge-sheet. P.W.1 is the alleged victim, whereas P.W.2 is her younger brother, who is said to have witnessed the occurrence. 18. It should also be noticed that all the statements allegedly recorded by the Investigating Officer were received in the court below only on 01.02.2006 along with the charge-sheet. P.W.1 is the alleged victim, whereas P.W.2 is her younger brother, who is said to have witnessed the occurrence. Therefore, this court has to accept the contention of the learned counsel for the appellants that there was an attempt made by the Investigating Agency to show that the victim girl was taking treatment as an in-patient and hence her statement under section 164 Cr.P.C could not be examined till the completion of the investigation and that only in such an attempt, corrections were made in the final report regarding the date of its preparation and an entry in the Accident Register was obtained as if P.W.1 was discharged on 10.11.2005. Absolutely, there is no explanation as to how the correction in the final report came to be made. The final report was received by the court below on 01.02.2006 and on that date it was taken on file as PRC No.1/2006. However, there is a correction in the date of assigning PRC number. At one place it is noted as "01.01.206" and at another place the date is noted as 01.02.06. Even in that, the month column has been corrected from “1” to “2”. Whatever it be, the seal of the committal court bears the date “1 FEB 2006”. All those aspects will go to show that there was a conscious attempt made on the part of the Investigating Officer to show that the statement of the victim (P.W.1) could not be examined under Section 164 of Cr.P.C, as she was taking treatment as an in-patient in the hospital. 19. As pointed out supra, the injuries sustained by P.W.1 were simple in nature, which did not require treatment as an in-patient. 19. As pointed out supra, the injuries sustained by P.W.1 were simple in nature, which did not require treatment as an in-patient. The very purpose of keeping her as an in-patient was to avoid recording of her statement under Section 164 of Cr.P.C and offering an explanation for the same as if she was given treatment as an in-patient and hence she could not be examined under Section 164 of Cr.P.C. Ex.P9 has been sought to be projected as the requisition sent to the Chief Judicial Magistrate for the recording of the statements of the witnesses under Section 164 Cr.P.C. But, unfortunately the same turns out to be a copy of the letter addressed by the Judicial Magistrate No.II, Coimbatore to the Chief Judicial Magistrate transmitting the copies of the statements of P.Ws.2 to 4 and 8 and one Sadhasivam, to the Chief Judicial Magistrate. The requisition submitted by the Investigating Officer for having the statements of the witnesses recorded under Section 164 Cr.P.C. has not been produced. This court has to accept the contention of the learned counsel for the appellants that the production of the same would have established the circumstances under which P.W.1 was not produced before Judicial Magistrate No.II, despite issuance of summons. It should also be noticed that the alleged victim (P.W.1) was not produced before the Magistrate and for the first time she was produced in the trial court on the date of her examination as P.W.1. The same will also show the probability of the contentions raised by the learned counsel for the appellants to be correct. 20. Yet another discrepancy, which has got to be discussed, has also been pointed out by the learned counsel for the appellants. Ex.P1 - complaint has been signed by P.W.3 - Marimuthu and P.W.4 - Nagammal @ Nagamani. The sender-s address as found in the complaint is reproduced hereunder:- VERNACULAR (TAMIL) PORTION DELETED In this, the road name was originally written as VERNACULAR (TAMIL) PORTION DELETED But the first word VERNACULAR (TAMIL) PORTION DELETED was deleted and VERNACULAR (TAMIL) PORTION DELETED was inserted before the said deleted word. Similarly, in between the names Marimuthu and Nagammal, the initial “M” has been inserted and located at a place not in alignment with the names, but at a place above the names. There is also a correction in the complaint. Similarly, in between the names Marimuthu and Nagammal, the initial “M” has been inserted and located at a place not in alignment with the names, but at a place above the names. There is also a correction in the complaint. Originally it was written that the complaint was prepared according to the advice tendered by the union office bearers. But subsequently the same was corrected to the effect that the complaint was lodged with the help of the union office bearers. The complaint has been prepared as if it was prepared by P.W.3 - Marimuthu alone, which is obvious from the first sentence of the body of the complaint. VERNACULAR (TAMIL) PORTION DELETED The subsequent recital also contains the words VERNACULAR (TAMIL) PORTION DELETED making it obvious that the complaint was preferred by a single person. It should also be noticed that signature of Marimuthu appears first and Nagammal’s signature appears below the signature of Marimuthu. Though her name is shown as "Nagammal" in the address, she has signed only as "Nagamani". Nowhere in the complaint it has been stated that she has an alias name or she used to sign as Nagamani even though her original name is Nagammal. The said discrepancies assume significance in the light of the fact that P.W.12, the Investigating Officer, who registered the FIR, has stated in his evidence in chief examination itself that it was P.W.4-Nagammal who lodged the complaint and based on whose complaint the case was registered. 21. P.W.6 - Dr.Geetha, the Medical Officer who admitted P.W.1 in the hospital, after preparing Accident Register, would state that it was P.W.4, the mother of the victim, who gave the information to the Medical Officer, based on which the particulars found in the Accident Register were noted. P.W.1 has also admitted in her evidence that she did not state anything to the Medical Officer and that it was her mother, who narrated the occurrence to the Medical Officer. On the other hand, P.W.3, in his evidence in chief examination, stated that he along with his wife lodged a complaint with the police; that she also signed the complaint and that such a complaint was Ex.P1. However, during cross-examination he stated that on 27.09.2005 in the morning, he went to the police station to lodge the complaint. But he could not state the exact time. However, during cross-examination he stated that on 27.09.2005 in the morning, he went to the police station to lodge the complaint. But he could not state the exact time. However, he would assert that the complaint was given in the morning and not in the afternoon. Going back from his statement in the chief examination that his wife signed the complaint along with him, during cross examination he has stated that in the written complaint he put his signature but, he did not remember whether the signature of his wife was obtained in the complaint. The same would show that there is something fishy in the case sought to be projected by the prosecution as to by whom and how the complaint was lodged. 22. It is P.W.4 - Nagammal, who, for the first time came with the statement in her evidence in chief examination that, she and her husband jointly gave Ex.P1 - complaint. It is also her evidence that it was she who informed the doctor as to what happened to her minor daughter for preparing the Accident Register. It is also the evidence of P.W.6 - Medical Officer that it was P.W.4, the mother of the victim, who gave the particulars for the preparation of the Accident Register. In Ex.P11 - Treatment file, the informant is stated to be the one given by the mother of the victim. But, however in Ex.P11 itself a paragraph has been included as "victim's version" as if the victim also informed the Medical Officer about the occurrence. It must be remembered that P.W.1 herself has stated in her evidence that she did not say anything to the Medical Officer and it was her mother who gave the necessary information to the Medical Officer. 23. P.W.12 - Investigating Officer’s evidence is contrary to the evidence of P.Ws.3 and 4. It is his testimony that P.W.4 - Nagammal lodged a written complaint in the police station, based on which the case was registered. He has also identified Ex.P1 to be the complaint lodged by P.W.4. During cross-examination, P.W.12 has admitted that certain corrections have been made in Ex.P1 - complaint. It is his testimony that P.W.4 - Nagammal lodged a written complaint in the police station, based on which the case was registered. He has also identified Ex.P1 to be the complaint lodged by P.W.4. During cross-examination, P.W.12 has admitted that certain corrections have been made in Ex.P1 - complaint. If the above said discrepancies are considered in the light of the fact that there is illogical corrections in Ex.P1-complaint, the same would cause a serious doubt on the prosecution version and even probablise the defence theory of the accused persons that they have been falsely implicated for which the Medical Officer and the police officers have extended their helping hands. 24. The learned counsel for the appellants has also pointed out a vital aspect revealed by the admission made by P.W.1, P.W.3 and P.W.4, which is also reflected in the contents of Ex.P1 - complaint. The prosecution version is that the occurrence took place at 4.30 p.m on 22.09.2005; that though the children (P.Ws.1 and 2) did not inform their parents for about two days out of fear because of the threat caused by the appellants/accused, on 24.09.2005, P.W.2 informed his mother, namely P.W.4 and that on the same day P.W.4 elicited the particulars of the occurrence from P.W.1, pursuant to which she made an attempt to administer poison to her children and commit suicide by consuming poison. The further case of the prosecution is that on timely intervention, P.W.3 saved them from committing suicide on the very same day. It is the admitted case of the prosecution that P.W.3 also got the knowledge regarding the occurrence on 24.09.2005 itself. However, the complaint was lodged only on 27.09.2005. There is no acceptable explanation for such a delay even after P.W.3 came to know that his daughter aged about 8 years was raped. On the other hand, there is an admission that they had discussions with the office bearers of the union attached to a political party, of which P.W.3 was also a member and that on the advice of such office bearers of the union, the complaint was preferred on 27.09.2005. On the other hand, there is an admission that they had discussions with the office bearers of the union attached to a political party, of which P.W.3 was also a member and that on the advice of such office bearers of the union, the complaint was preferred on 27.09.2005. It has already been pointed out supra that the recital found in the complaint was to the effect that the complaint was lodged according to the advice of the union members and the same was corrected to the effect that the complaint was lodged with the help of the office bearers of the union. Whatever it be, it is crystal clear from the admission made by P.Ws.1, 3 and 4 that there was consultation and deliberations with the union members as to whether a complaint should be lodged and how the complaint should be drafted. When such a consultation and deliberation is admitted by the prosecution witnesses, it gives room for an inference that there was every chance of putting-forth a concocted version as a result of consultation and deliberation. The same has been brought to light by the candid admission made by P.W.1. It is her clear admission that there was a consultation with the people on whom P.W.3 had faith and pursuant to such consultation they took a decision as to how the complaint should be prepared and that only thereafter, they took P.W.1 and P.W.4 to the police station to lodge the complaint. P.W.3 also admitted such a consultation with the union office bearers and the fact that the complaint was given on the advice of one Marudhachalam, an office bearer of a union affiliated to communist party. P.W.4 has also admitted that they had consultation with the leaders of the village and only on the basis of their advice, Ex.P1-complaint was lodged. Therefore, this court has to accept the contention of the learned counsel for the appellants that there had been deliberation as to how the complaint should be given and only pursuant to such deliberation Ex.P1 - complaint came to be given. 25. The mere fact that there had been deliberation itself shall not be enough to hold that the prosecution case is concocted. 25. The mere fact that there had been deliberation itself shall not be enough to hold that the prosecution case is concocted. But, in addition to the fact that there is an admitted consultation and deliberation before lodging the complaint, there is an unexplained delay of at least three days after P.W.3 got knowledge of the occurrence, even though the delay of 2 days subsequent to the date of occurrence could be stated to have been explained. In addition to the said unexplained delay, there is also evidence in the form of clear admissions by P.Ws.1 and 2 that the complaint was lodged with an ulterior motive with an imaginary and concocted version. It is the clear admission of P.W.1 that her father, namely P.W.3 along with 4 or 5 persons used to play cards in front of their house; that there was also a fight between P.W.4 and the wife of D.W.1 - John Prem; that pursuant to the said fight between P.W.4 and the wife of D.W.1, P.W.3 made a complaint to the leaders of the village; that there after P.W.3 and the leaders discussed and arrived at a decision to lodge a complaint; that they also arrived at a decision regarding the contents of such proposed complaint and that only there after they took P.W.1 and P.W.4 at the first instance to the police station for lodging the complaint and then to the hospital. It is also a clear admission made by P.W.1 that her father and the union leaders belonging to the political party of which her father was a member, made a deliberation in their house and based on such deliberation they directed P.W.1 to give statement as they had dictated to her. It is also her clear admission that they had also stated that unless she was brought to the hospital with bleeding injuries, no case would be registered and that hence she went to the hospital with a bleeding injury on her hand. For better appreciation, the concerned portions of the deposition of P.W.1, in the vernacular version, are extracted here under:- VERNACULAR (TAMIL) PORTION DELETED P.W.1 during cross examination made an admission that she did not know what is meant by "Mz;Fwp" and what is meant by "bgz;Fwp". However, in the chief examination she has used the said terms to describe the occurrence. However, in the chief examination she has used the said terms to describe the occurrence. As rightly contended by the learned counsel for the appellants, the same also will go to show that she was completely tutored as to how to depose before the court. 26. Similar admissions are found in the evidence of P.W.2. His admission is clearer than the one made by P.W.1. He has stated that they are not in talking terms with the family members of D.W.1 - John Prem; that the wife of John Prem had bitten P.W.4 on her stomach; that pursuant to the same, his father, namely P.W.3, wanted to lodge a complaint against the appellants/accused; that hence he invited the leaders and the labour leaders and had a discussion with them in his house and that the labour leaders suggested that a complaint should be lodged with the police. The vernacular portion of his evidence is extracted here under for better appreciation:- VERNACULAR (TAMIL) PORTION DELETED 27. P.W.3 - Marimuthu also admitted that John Prem (D.W.1) was moving closer with the appellants/accused. However he would plead ignorance as to whether the accused would come in support of John Prem in case of arisal of any problem to him. P.W.3 has also clearly admitted that there was a fight between P.W.4 and the wife of John Prem, in which P.W.4 was bitten on the stomach by John Prem's wife. There is also admission made by P.W.4 to the effect that there was enmity between herself and the appellants/accused; that there was a fight between herself and the wife of D.W.1-John Prem, pursuant to which a panchayat was convened and that in the said panchayat, the appellants/accused supported the wife of John Prem. However, she would state that John Prem's wife did not bite P.W.4's stomach, whereas it was she (P.W.4), who bit the wife of John Prem on her hand. This is quite contra to the admission made by P.Ws.1 to 3. All the above said admissions will go to show that the alleged occurrence is doubtful and the complaint should have been prepared with concocted version to wreak vengeance for the support extended by the appellants/accused to the wife of D.W.1 - John Prem in the panchayat convened pursuant to the fight between P.W.4 and the wife of D.W.1 - John Prem. 28. 28. In addition to the above said aspects, there are also other materials which will cause a serious and reasonable doubt on the prosecution version. It is admitted by P.Ws.1 and 2 that even after the occurrence, they were attending the school as usual and that they waited for a holiday since the elders decided that the complaint could be lodged on a school holiday. In addition to that there is also a contradiction as to how many rooms are there in the house of P.W.3. The story propounded by the prosecution is that P.W.2 was sent out of the house by the appellants/accused after giving him some snacks to eat and there after the first appellant (A1) committed rape on P.W.1 for which the second appellant (A2) happened to be the abettor by aiding. In this regard there is a material contradiction between the evidence of P.Ws.1 and 2. According to the testimony of P.W.1, after sending P.W.2 out of the house, the second appellant/A2 (Masanam) hugged P.W.1 and kissed her; that she cried and raised alarm; that on hearing the same, P.W.2 came in; that thereafter they were threatened by the second appellant not to raise alarm lest they would be killed and that then the first appellant (A1) - Ramesh took her to another room in the house and committed rape on her. The said evidence of P.W.1 is to the effect that when the second appellant/accused and P.W.2 were in one part of the very same house, she was taken to another room in the said house and was raped by the first appellant/first accused. 29. The evidence of P.W.2 in this regard is that he was sent out of the house by the accused persons after offering him some snacks to eat; that along with him the second appellant (A2) - Masanam had also came out of the house; that the first appellant (A1) - Ramesh bolted the door of the house from inside; that after some time P.W.1 came out and at that point of time she was found frightened and untidy; that they threatened P.Ws.1 and 2 to kill them, if they would inform others what happened and that there after again they offered some snacks to him and went out. P.W.1's evidence would suggest that there were two rooms or at least one hall and a room in their house and that while P.W.2 and the second appellant/second accused were inside the house in one room or the hall, P.W.1 was taken to the other room and raped by the first appellant (A1). But the evidence of P.W.2 is quite contra to the said evidence of P.W.1 in so far as he has stated that both he and the second appellant had gone out and the first appellant bolted the door of the house from inside, committed sexual assault and after the occurrence, P.W.1 followed by the first appellant/first accused came out of the house. P.W.2 has also stated that there is only one room in their house and that the same is also a small one. It is also a fact admitted by P.W.1 that their house was a thatched house and it consists of a single room. It is also her admission that to close the door, stones would be placed behind the door. The evidence of P.W.2 in this regard is contrary to the evidence of P.W.1, in so far as he has specifically denied her suggestion that stone would be placed for closing the door. The evidence of P.W.3 in this regard is that they were using wooden piece for closing the door. All these aspects, coupled with the admission made by P.Ws.1 and 2 that there was a fight between P.W.4 and the wife of John Prem pursuant to which a panchayat was convened; that there after, the panchayatdars and P.W.3 discussed and not only took a decision to lodge a complaint but also decided the modalities of lodging the complaint, will go to show that the alleged occurrence could not be true and that the complaint could have been preferred with concocted version in order to wreak vengeance on the appellants/accused, who had supported the wife of John Prem in the panchayat held pursuant to the fight between her and P.W.4. At least a reasonable doubt, has arisen to the said effect, the benefit of which shall definitely be given to the appellants/accused. 30. As pointed out supra, the medical evidence does not support the case of the prosecution that P.W.1 was subjected to forcible sexual intercourse. At least a reasonable doubt, has arisen to the said effect, the benefit of which shall definitely be given to the appellants/accused. 30. As pointed out supra, the medical evidence does not support the case of the prosecution that P.W.1 was subjected to forcible sexual intercourse. The only Medical Officer examined as P.W.6 has not given any opinion as to whether P.W.1 could have been raped or not. Though P.W.1 was referred to the paediatric surgery ward for opinion, no Medical Officer who treated her in the said ward, has been examined. No opinion of the Medical Officer of the paediatric surgery ward has been obtained. The resultant position is that there is no medical opinion to the effect that P.W.1 could have been subjected to forcible sexual intercourse. In fact the evidence of P.W.6 reveals that no symptoms could be found in the genitalia of P.W.1 showing forcible sexual intercourse. P.W.6 has stated that the vagina of P.W.1 admitted only the tip of the finger, but at the same time, has gone to the extent of stating that hymen was absent. The same coupled with other circumstances leading to an inference that P.W.1 was kept in the hospital as an in-patient for 14 days only with a view to screen her from being examined under Section 164 Cr.P.C as indicated supra, will go to show the improbabilities of the prosecution case, let apart the absence of proof of prosecution case beyond reasonable doubt. The court below has failed to consider the evidence in proper perspective and that is why it has arrived at a conclusion, which according to this court, is erroneous, defective and infirm and that if the trial court had properly appreciated the evidence and considered the contradictions, defects and also the admissions found in the evidence of prosecution, which were discussed above, it ought to have come to the conclusion that the prosecution failed to prove its case beyond reasonable doubt. There are reasonable doubts regarding the prosecution story and the benefit doubt should be given to the accused. The appellants/accused ought to have been held not guilty of the offences with which they stood charged. There are reasonable doubts regarding the prosecution story and the benefit doubt should be given to the accused. The appellants/accused ought to have been held not guilty of the offences with which they stood charged. The erroneous approach, with a pre-determination, made by the trial court has resulted in the conviction of the appellants/accused and this court does have no hesitation to hold the finding of the trial court regarding the proof of the charges against the appellants/accused to be infirm and discrepant and the same is unsustainable. 31. For all the reasons stated above, this court comes to the conclusion that the conviction recorded by the trial court for the offences under Sections 450, 376 and 506 (ii) IPC against the first appellant (A1) and Sections 450, 376 r/w 109 and 506 (ii) IPC against the second respondent are liable to be set aside and the appellants/accused are liable to be acquitted of all the offences with which they stood charged and set at liberty. 32. In the result, the criminal appeal is allowed. The judgment of conviction and the order of sentence imposing punishments on the appellants (A1 and A2) are set aside and the appellants are acquitted of all the offences with which they stood charged and they are set at liberty. The bail bonds executed by them, if any, shall stand discharged. Fine amount, if any, paid shall be ordered to be refunded.