JUDGMENT 1. These two original petitions, both filed under Article 227 of the Constitution are by the rival side in appending suit on the file of the Sub Court. Ernakulam. 2. O.P. (C) No.312/11 has been filed by the plaintiffs in the suit, three in number, against Ext.P6 order passed by the learned Sub Judge disallowing the application moved by them for interim attachment of an immovable property belonging to the defendants recording the averment in the affidavit filed by the 5th defendant who represented the 1st defendant company also as its Managing Director that such property will not be alienated. O.P. (C) No.429/12 has been filed by the defendants against the common order passed by the learned Sub Judge (Ext.P6 in the OP) on two applications moved by the plaintiffs directing for issue of summons to some bank managers to appear and produce the loan documents of the defendants, and from the authority concerned to produce an application purported to have been moved by the 5th defendant to remove his name from the list of willful defaulters. The learned Sub Judge after hearing the applications of the plaintiffs negativing the objections of the defendants, allowed them under a common order and directed issue of summons for production of the documents. Challenge in the above original petition is against that order. 3. Though the orders challenged in the two original petitions arise from separate petitions canvassing different reliefs as they emanate from the suit between the same parties, after hearing the counsel on both sides, they are disposed of under this common judgment. For the sake of convenience, exhibits produced, to the extent possible, are referred to with reference and as marked in O.P.(C) No.312/11, except where it is so found necessary to refer to the exhibits separately produced in the other original petition. 4. Suit is one for recovery of money of a sum of Rs.1,50,00,000/- alleged to have been collected by the defendants from the plaintiffs promising to transfer dealership of ‘Tata Motors” to them, but, which was not honoured. Ext.P1 in O.P. (C) No.429/12 is copy of the plaint. 4. Suit is one for recovery of money of a sum of Rs.1,50,00,000/- alleged to have been collected by the defendants from the plaintiffs promising to transfer dealership of ‘Tata Motors” to them, but, which was not honoured. Ext.P1 in O.P. (C) No.429/12 is copy of the plaint. Though some other transactions as to handing over of the title deeds of the plaintiffs over an immovable property to secure loans for purchase of a BMW car from the defendants are also imputed of, for the purpose of disposal of these two original petitions, it is unnecessary to dilate on those aspects with reference to the contentions raised thereto by the defendants to resist the suit claim. Suffice to state that the defendants in their joint written statement (Ext.P2 in the above OP) have admitted the receipt of the sum of Rs.1.5 crores from the plaintiffs, but, with a different version that it was provided on the basis of an offer made by the plaintiffs to have a joint venture with the 1st defendant company promising to arrange a capital of Rs.7.5crores. A sum of Rs.1.5 crores alone was later arranged, that too in instalments, according to the defendants. The defendants also raised a counter claim for a sum of Rs.5 crores on the allegation that the 5th defendant had been arrested by police at the instance of the plaintiffs on trumped up charges over the transactions imputed in the plaint and thereby he has suffered damage to the extent to the sum claimed. 5. Plaintiffs filed an application in the suit for interim attachment of an item of immovable property belonging to the defendants to secure the suit claim. Ext.P1 is copy of that application. To that application Ext.P2 counter affidavit was filed by the 5th defendant. An additional affidavit (Wxt.P3) was them filed by the plaintiffs, to which the 5th defendant filed Ext.P4 counter affidavit. Plaintiffs thereupon filed Ext.P5 reply affidavit. The learned Sub Judge, after considering the affidavits as above and hearing the counsel on both sides, passed Ext.P6 order disallowing the interim attachment claimed, but, ordering for recording the affidavit filed by the first plaintiff that the property will not be alienated. 6. The learned counsel for the plaintiffs assailed Ext.P6 order passed by the learned Sub Judge as illegal, irregular and vitiated by serious jurisdictional infirmity. 6. The learned counsel for the plaintiffs assailed Ext.P6 order passed by the learned Sub Judge as illegal, irregular and vitiated by serious jurisdictional infirmity. The learned Sub Judge has failed to exercise his judicial discretion property and correctly with reference to the admitted facts and circumstances presented in the case, and the application for interim attachment was turned down on hyper technical grounds without taking note that the conduct of the 5th defendant who has already entered into an arrangement to put up a commercial venture, to put up construction of a multi-storied building in the scheduled property with a third party, would render whatever undertaking given by him in his affidavit unworthy of any value, is the submission of the counsel. Intention of defendants to alienate at least a major portion of the property, if not the whole, is evidenced from the contract entered with the third party and when that be so, whatever be the undertaking given by the first defendant and recorded by the court, that would not secure the decree granted in favour of the plaintiffs, is the further submission of the counsel. In such a situation, the plaintiffs will be able to get only the share by contribution with other creditors of the defendants, and in the given facts of the case where there is no dispute about the receiving of the sum of Rs.1.5 crores from the plaintiffs by the defendants, the learned Sub Judge should have passed an order of attachment over the scheduled property to secure the decree canvassed on the claim of the plaintiffs, is the submission of the counsel that Ext.P6 order is liable to be interfered with and an order of attachment over the scheduled property of the defendants has to be passed to advance the ends of justice. 7. Countering the submission made as above, learned Senior Counsel appearing for the respondents contended that no interference with the order passed by the learned Sub Judge is called for in the case, where no infirmity could be imputed against such order. Adverting to paragraph 11 of affidavit forming part of Ext.P1, the application moved by the plaintiffs for interim attachment before judgment, learned Senior Counsel contended that the essential particulars to be pleaded to seek such discretionary relief are totally absent to invoke the jurisdiction of the court to pass an order of interim attachment before judgment. Adverting to paragraph 11 of affidavit forming part of Ext.P1, the application moved by the plaintiffs for interim attachment before judgment, learned Senior Counsel contended that the essential particulars to be pleaded to seek such discretionary relief are totally absent to invoke the jurisdiction of the court to pass an order of interim attachment before judgment. Mere allegation by the plaintiffs that the defendants are intending to dispose of the property is not sufficient to issue an order of attachment before judgment, and if we go by the averment of the affidavit of the plaintiff in Ext.P1 there is no particulars whatsoever as to steps, if any, taken by the defendants to dispose their property, submits the senior counsel. The defendants have given an undertaking to the effect that they will not alienate the property, which, in the given facts of the case, has been accepted by the learned Sub Judge as sufficient to hold that an interim order of attachment as applied for by the plaintiffs is called for, is also highlighted by the counsel to contend that in exercise of visitorial jurisdiction vested with this court no interference with such order, which has been passed in exercise of the judicial discretion of the learned Sub Judge is possible. An undertaking has been given before this court that the defendants will not alienate the property pending disposal of the original petitions and on its basis an order has been passed with a direction to communicate to the Sub Registry, is also pointed out by the counsel that the challenge against the order of the learned Sub Judge declining interim order of attachment has only to be turned down. 8. Ext.P6 order passed by the learned Sub Judge would indicate that the learned Sub Judge, after taking note of the judicial precedents laid down in considering of an application for interim attachment before judgment, has concluded that the affidavit filed in support of Ext.P1 application did not satisfy the requirements for passing an interim order of attachment. In fact, there is no discussion with reference to the affidavits later filed by both parties to the proceedings in the enquiry conducted over the relief claimed for interim attachment before judgment. In fact, there is no discussion with reference to the affidavits later filed by both parties to the proceedings in the enquiry conducted over the relief claimed for interim attachment before judgment. Facts presented in the case would show that before Ext.P1 application was moved, a caveat petition moved by the defendants anticipating adverse interim orders against them in a proceeding by the plaintiffs was in force, and accordingly notice on Ext.P1 application was issue dot them. No interim order of attachment was passed on Ext.P1 application probably in view of the aforesaid circumstance. When that be the case and pending enquiry on Ext.P1 application when both sides tendered materials in support of their respective case, absence of specific particulars in the affidavit forming part of Ext.P1 application in seeking the interim order of attachment cannot be given too much significance and the learned Sub Jude has to look into the materials produced in such enquiry to consider whether the plaintiffs are entitled to the discretionary relief of interim attachment. A hyper-technical view that in such a case the application for interim attachment has to be allowed solely on the basis of the averments made in Ext.P1 application, even if the circumstances presented in the case show otherwise, would lead to miscarriage of justice. The defendants have received a sum of Rs.1.5 crores from the plaintiffs is not a matter in dispute. It has also come out that the defendants have entered into an agreement with a third party to put up some constructions over substantial portions of the property scheduled in the petition. What are the terms of such agreement and how far the property is encumbered under such agreement has not been disclosed to the court. Circumstances presented as above cannot be brushed aside by the court when a suit claim is sought to be secured by an interim order of attachment by the plaintiffs canvassing a case that if an order of interim attachment is not passed pending suit, the decree that may be passed in their favour may turn out to be a paper decree incapable of bearing fruits in execution. Further more, it is noticed that the learned Sub Judge was heavily impressed by the undertaking given by the defendants that they will not sell the property. Further more, it is noticed that the learned Sub Judge was heavily impressed by the undertaking given by the defendants that they will not sell the property. Scanning through the affidavits filed by the defendants Exts.P2 and P4, I do not find that, any specific undertaking which could be acted upon, in case the need arises, has been given to the court. Ext.P2 counter affidavit is seen filed by the Managing Director of the 1st respondent company on behalf of that respondent in the suit. That Managing Director has been impleaded in the suit in his individual capacity as the 5th defendant. There is no whisper in the counter affidavit that it ha been filed on behalf of all the defendants. So far as the undertaking given, it is interesting to note that the only averment made, that too repudiating the apprehension of the plaintiffs as to disposal of the property is thus: “I undertake before this honourable court that no such event will occur before the disposal of the above suit.” Can such an averment be acted upon as an undertaking given by the defendants in the suit was not even gone into by the learned Sub Judge in coming to the conclusion that the defendants have given an undertaking and that would suffice the requirement of securing the scheduled property and rendering it available in the event of passing a decree, in favour of the plaintiffs. In the present petition, an undertaking has been given by the counsel for the respondents that the scheduled property will not be alienated till disposal, and, on the basis of the submissions recorded, a communication was sent to the Sub Registry, that also will not secure the decree in the suit incase it is so passed, after trial, in favour of the plaintiffs. Disposal of interlocutory applications for injunction, attachment etc., on the basis of undertaking given by one or the other party has been deprecated. In the event of any violation of such undertaking or a case is set up demanding an enquiry whether it has been flouted, at a later stage, that would result in undesired and unwarranted enquiry over the scope and interpretation of the undertaking given and also whether it has been flouted. In the event of any violation of such undertaking or a case is set up demanding an enquiry whether it has been flouted, at a later stage, that would result in undesired and unwarranted enquiry over the scope and interpretation of the undertaking given and also whether it has been flouted. Interlocutory applications for injunction, attachment etc., have to be decided on its merits and not to be disposed of on undertaking given by the opposite party. In the present case, in fact there was no undertaking at all. No undertaking was given by the defendants other than an averment by one of the defendants, the Managing Director of the 1st defendant company, that the event apprehended by the plaintiffs regarding the disposal of the property will not occur during the pendency of the suit. In Ext.P2 affidavit the word ‘undertake’ has been used by the deponent to state that the event apprehended by the plaintiffs will not occur during the pendency of the suit is no ‘undertaking’ at all. Further more, even if that averment is to be construed as an undertaking by the 1st defendant company. It does not amount to an undertaking by the other co-defendants. Then also, what is the merit of the averment even if it is construed as an undertaking has also to be taken note of in the backdrop of the proved circumstances that the defendants have entered into some agreement with a third party for putting up constructions in major portion of the scheduled property. The averment which is styled as an ‘undertaking’ would only preclude the deponent in the affidavit, and even assuming that it is binding on other defendants as well, then, all the defendants from effecting a voluntary disposition of the property. However, if there is compulsion for involuntary transfer through due process of law at the instance of a third party for enforcement of any agreement of sale or claim, then, also what is styled as an ‘undertaking’ as per the averment in Ex.P2 affidavit will evaporate and be of no use. Without looking into any of the above aspects, the learned Sub Judge has passed Ext.P6 order as if the defendants have given an undertaking and that would suffice the ends of justice. Without looking into any of the above aspects, the learned Sub Judge has passed Ext.P6 order as if the defendants have given an undertaking and that would suffice the ends of justice. When no undertaking has been given by the defendants and the averments in Ext.P2 affidavit referred to above by the 1st respondent through its Managing Director can never be treated as an undertaking. Ext.P6 order passed by the learned Sub Judge as if an undertaking has been given by the defendants that they will not dispose of the property suffers from serious jurisdictional infirmity, and it warrants interference in exercise of the visitorial jurisdiction vested with this court. 9. The other original petition, O.P. (C) No.429/12 has been filed by the defendants challenging the order of the learned Sub Judge allowing two applications moved by the plaintiffs for summoning some bank managers and production of documents through them. At the time of hearing, it is submitted that pursuant to summons issued by the court, most of the documents sought for in the application of the plaintiffs have already reached the court as produced by the bank managers summoned. Further more, from the submissions made by the counsel on both sides, and also looking into the challenges raised against the orders passed by the learned Sub Judge in the original petition, I find that, in the backdrop of the counter claim raised by the defendants in the suit for damages imputing that the acts of the plaintiffs have tarnished the business reputation of the 5th defendant, it cannot be stated, at this stage, that the applications moved by the plaintiffs for summoning the documents to show that the 5th defendant is a ‘wilful defaulter’ included in the list of willful defaulters published by the bank and correspondence thereto, were unworthy of consideration. I do not find any impropriety in the order passed by the learned Sub Judge allowing the applications moved by the plaintiffs for summoning bank managers for production of the documents. However, I make it clear that it is open to the defendants to raise whatever objections sustainable under law over the admissibility of the documents summoned in receiving them in evidence. If any objection to the reception of the documents summoned in evidence is raised, no doubt, the learned Sub Judge has to consider admissibility of such documents in accordance with law. 10. If any objection to the reception of the documents summoned in evidence is raised, no doubt, the learned Sub Judge has to consider admissibility of such documents in accordance with law. 10. Plaintiffs in the given facts of the case are shown to be entitled to an interim order of attachment before judgment over the scheduled property covered by Ext.P1 application, subject to the right of the defendants to furnish security for the plaint claim and get such interim order of attachment vacated. Ext.P1 application for attachment in reversal of Ext.P6 order shall stand allowed, subject to the rights of the defendants to furnish security for the plaint claim within a period of six weeks from the date of this judgment before the court below. O.P. (C) No.312/11 is allowed as indicated above, and O.P. (C) No.429/12 is dismissed. 47. In the decision reported in Radhu v. State of Madhya Pradesh ((2007) 12 SCC 57), it was held as follows: "6. It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a 'rape', if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, wrist, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. Bruises, abrasions and scratches on the victim especially on the forearms, wrist, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare in stances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case." 48. The law is clear on the point that the victim of rape cannot be treated as an accomplice. While it may not be possible to take the view that the version of the victim cannot always be taken as gospel truth, at the same time it is to be borne in mind that it is not to be looked into with suspicion. Each case depends upon the facts of the particular case. It is not necessary in law to look for corroboration to accept the version given by the victim in a rape case. Indeed a certain amount of care and caution has to be exercised while considering the evidence of the victim. One shall not forget that it is seldom that one gets corroboration in support of the version given by the victim in such cases. 49. Much of the efforts of the accused persons was focused on the age of the victim. The attempt of accused No.1 at the time of cross examination of the victim, apart from vilifying her, was to show that by April, 2008 she had attained the age of 16 and the acts, if at all any, were done were with the volition of the victim. 50. Unfortunately for the accused persons, there is overwhelming evidence to show that the victim was born on 10.12.1992. P.W.4, the mother of the victim would submit before court that the marriage between her and the first accused was in 1991 and P.W.1, their eldest child was born on 10.12.1992 at Shamy Hospital at Thalassery. This categoric assertion by P.W.4 is not challenged in cross-examination. P.W.4 also stated that it was she along with the first accused who had gone to the school at Ayipuzha for getting admission of P.W.1 in the School. This categoric assertion by P.W.4 is not challenged in cross-examination. P.W.4 also stated that it was she along with the first accused who had gone to the school at Ayipuzha for getting admission of P.W.1 in the School. She would also say that it was she who had given the date of birth in the school as 10.12.1992. This version of P.W.4 is also not challenged in cross-examination. When questioned under Section 313 Cr.P.C., accused No.1 had a different story which is not substantiated at all. 51. P.W.25, the Registrar of Births and Deaths, Thallaserry, has produced Ext.P43 document. The said document shows the date of birth of the victim as 10.12.1992. It is contended on behalf of the accused persons that no reliance can be placed on the said document, since the application as per which the entries had been made in the register had not been produced. One shall at once remember that the entries shown in Ext.P43 came into existence at a time when there was no dispute at all. The Register of Births is an officially kept document. The entries in the relevant register are entered into in the ordinary course of business and the presumption under Section 114 of Evidence Act is attracted. If the accused had a case that the entries in Ext. P43 is not correct, it is for them to establish the said fact. It is by now well settled that the entries in the register maintained by the Registrar of Births and Deaths is an authentic document to show the date of birth and date of death of the person concerned. Apart from Ext.P43, P.W.32, the Headmaster of Govt. U.P. School, Ayipuzha, where the victim was first admitted has produced Ext.P56 extract of the School Admission Register. That too shows that the date of birth of P.W.1 is 10.12.1992. P.W.33, the Headmaster of K.P.C. School, Mattannoor produced Exts.P57 and P58 which also show the date of birth as 10.12.1992. It is therefore clear that the prosecution has succeeded in showing that in April, 2008 and till the date of lodging of FIS, i.e. Ext.P1, the victim had not completed the age of 16. 52. What then requires to be considered is the contention that inspite of several opportunities to revolt, P.W.1 did not do so and simply went along with accused No.1 knowing fully well what was in store for her. 52. What then requires to be considered is the contention that inspite of several opportunities to revolt, P.W.1 did not do so and simply went along with accused No.1 knowing fully well what was in store for her. It was contended that on the first occasion she might have been led into a trap. But on subsequent occasions, even when she could have tried to keep away, she did not do so. Nothing prevented P.W.1 from narrating her plight to her mother especially when she has stated that she had narrated her agony to her close friend. She went repeatedly with her father knowing fully well the consequences thereof. Much was commented upon her association with other boys and the neighbour by name Ummer. 53. True, it may look slightly odd that after the first incident at Thai Resort, P.W.1 did not realize the intention and motive of repeatedly taking her to that place. But a close reading of the evidence of P.W.1 will show how she was overpowered by accused No.1 and how she happened to be a helpless tool in his hand. Apart from the threat meted out to her, the evidence of P.W.1 shows that she was severely mandhandled by accused No.1 on several occasions. A girl of tender age of 15 years could not possibly resist the wrath of her father and might have been subdued by the possible consequences of a revolt. 54. An indication of displeasure of accused No.1 when P.W.1 refused to toe in line with accused No.1 is evident from the incident which took place on 6.7.2008. P.W.1 apart from stating that on several earlier occasions though she had expressed her unwillingness to go along with accused No.1, accused No.1 managed to make her believe that she is being taken for cassette recording. As regards the incident which took place on 6.7.2008, the evidence of P.W.1 is to the effect that she had strongly resisted the attempt of accused No.1 to take her. In this regard, she gets sufficient support form the evidence of P.Ws. 4 and 9 also. The statements given by P.Ws.1, 4 and 9 regarding the resistance offered by P.W.1 also shows that she was literally dragged from the house by accused No.1. These aspects spoken to by P.Ws.1, 4 and 9 are not seen challenged in cross-examination. In this regard, she gets sufficient support form the evidence of P.Ws. 4 and 9 also. The statements given by P.Ws.1, 4 and 9 regarding the resistance offered by P.W.1 also shows that she was literally dragged from the house by accused No.1. These aspects spoken to by P.Ws.1, 4 and 9 are not seen challenged in cross-examination. It is significant to notice that in the morning of 6.7.2008, when on request by accused No.1, P.W.1 had got out from the house, P.W.4 had sent the brother of P.W.1 along with her. Shrewd as he is, accused No.1 saw the trap and had P.W.1 and her brother returned home soon thereafter. Then he goes out and gives a phone call to P.W.1 and then came to the house to take her with him. A reading of the evidence of P.W.1 would clearly show that she was mortally afraid of accused No.1 and did not have the courage to resist his misdeeds. When P.W.1 was aged less than 16 years, in law the question of consent does not arise at all in view of Clause Sixthly of Sec.375 IPC. 55. It will be adding insult to injury to say that P.W.1 was a consenting party. P.W.1 of tender age, was a helpless and hapless tool in the hands of accused No.1 The various incidents spoken to by P.W.1 show that accused No.1 used to threaten her and also that on a few occasions she was beaten up. The fact that she was beaten up even in the Resort as spoken to by her speaks volume about the reason for inhibition on the part of P.W.1 to disclose the deeds of accused No.1 and others to anybody especially to her mother. Mere passive attitude on the part of P.W.1 in the circumstances of the case cannot be taken as an indication of her willingness for the activities of her father. The evidence is clear to the effect that P.W.1 had been threatened and coerced by the first accused and if P.W.1 felt that revealing the incident to anyone and raising a hue and cry about it, she alone would stand to loose, she could not be found fault with. She would become an object of ridicule and taunt by people. The consequences as far as she is concerned will be disastrous. She would become an object of ridicule and taunt by people. The consequences as far as she is concerned will be disastrous. By exposing the incidents, she and her family alone stood to suffer. Further, she would have been bewildered and shocked by the act of her father, accused No.1, which would have been incomprehensible to P.W.1 even in her widest dreams. Caught in such a situation, if P.W.1 remained confused, frightened and undecided, she could not be found fault with. One has to remember that even her father did not spare her. How embarrassing and agonizing it would be for a daughter to accuse her father of rape on her? Under those circumstances, if she chose to suffer in silence resiling to her fate, it could not be taken as an act of acceptance of the misdeeds of accused No.1 and her willingness to go along with him. 56. It is here one has to remember the principle laid down in the various decisions already referred to. As already noticed, there is a very remote possibility of getting corroborative evidence in such cases. Especially so, in this case when the perpetrator of the misdeeds is none other than the father of the victim. P.W.4 in her evidence stated about the incident narrated to her by her daughter. In the decision reported in Rameshwar Kalyan Singh's case (supra) the evidence given by the mother in such circumstances was taken as supportive of the evidence of the victim. It is too difficult to believe that a daughter as well as a wife would accuse the father or husband respectively of having committed such acts on the daughter which no father would think of. By making the incidents public, permanent damage would be done to the family and more so to P.W.1. She is affected both physically and mentally. The trauma undergone by her and the agonizing experience which she had undergone will never disappear from her memory and mind. It always continue to haunt her. In a society where victim of rape instead of being looked upon with sympathy, is looked as an object of ridicule and humiliation, it is highly improbable and inconceivable that P.W.1 and P.W.4 would level unfounded allegations against the first accused and other accused regarding the acts done on P.W.1. 57. It always continue to haunt her. In a society where victim of rape instead of being looked upon with sympathy, is looked as an object of ridicule and humiliation, it is highly improbable and inconceivable that P.W.1 and P.W.4 would level unfounded allegations against the first accused and other accused regarding the acts done on P.W.1. 57. The mere fact that the victim, namely, P.W.1 did not raise her voice or subjected meekly to the atrocities committed on her, in the facts and circumstances of the case cannot be taken as a token of consent and there is no ground to reject her version regarding the incident. 58. The contention that P.W.1 meekly submitted herself to the agonizing acts means that she was a consenting party cannot be countenanced. First of all, P.W.1 had not completed the age of 16 at the relevant time. Again, the circumstances under which she remained passive and meekly submitted will have to be appreciated. Section 90 of IPC reads as follows: "90. Consent known to be given under fear or misconception.- A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.-if the consent is given by a person who, from unsoundness of mind or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.- unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age." A mere reading of Section 90 IPC will show that the so-called consent alleged by the defence cannot be accepted. Consent means an act as a result of deliberation after having considered the good and evil on each side. Consent must be free. Every consent involves submission, but the converse is not true. Mere submission to an act either due to fear, misrepresentation or misconception does not amount to consent at all. Consent means an act as a result of deliberation after having considered the good and evil on each side. Consent must be free. Every consent involves submission, but the converse is not true. Mere submission to an act either due to fear, misrepresentation or misconception does not amount to consent at all. To quote Rathanlal and Whing field on Law of Crimes, 23rd Edition at page 1401 stated as follows: "The mere act of helpless resignation in the face of emanable compulsion quiescence, non-resistance or passive giving in when volitional faculty is either crowded by fear or vitiated by duress cannot be treated as consent as understood in law." Therefore submission as a result of fear or terror cannot be treated as consent. In fact in the case on hand, the question of consent does not arise since the victim has not completed the age of 16 as on the date of commission of the offence. In the decision reported in Dileep Singh v. State of Bihar (AIR 2005 SC 203) it was held as follows: "Penal Code does not define 'consent' in positive terms but what cannot be regarded as consent under the Code is explained by S. 90. Consent given firstly, under fear of injury and secondly, under a misconception of fact is not 'consent' at all. That is what is enjoined by the first part of S. 90. These two grounds specified in S. 90 are analogous to coercion and mistake of fact which are the familiar grounds that can vitiate a transaction under the jurisprudence of our country as well as other countries. The factors set out in the first part of S. 90 are from the point of view of the victim. The second part of S. 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emnphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied." 59. Thus, the second part lays emnphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied." 59. In the decision reported in Pradeep Kumar v. State of Bihar (2007(4)K.L.T. 41) it was held as follows: "There are two grounds specified in S.90 which are analogous to coercion and mistake of fact which are the familiar grounds that can vitiate a transaction under the jurisprudence of our country as well as other countries. The factors set out in first part of S.90 are from the point of view of the victim and second part of S.90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the Court has to see whether the person giving the consent has given it under fear or misconception of fact and the Court should also be satisfied that the person doing the act i.e. the alleged offender is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of S.90 which is couched in negative terminology. A promise to marry without anything more will not give rise to 'misconception of fact' within the meaning of S.90, it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. A promise to marry without anything more will not give rise to 'misconception of fact' within the meaning of S.90, it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making or promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of S.375 clause second." Thus viewed from any angle, on principles or on the basis of precedents, the fact that P.W.1 did not divulge her agony to anybody or that she did not resist or revolt does not mean that she has consented to the various misdeeds of her father since both on account of her age and the circumstances under which she had to undergo the trauma cannot amount to consent at all. 60. It has to be conceded that the evidence of P.W.1 is not flawless. To certain questions put by the accused, she remained silent. She had admitted that she had acquaintance with certain boys. The attempt of the defence was her character assassination which was rightly noticed by the court below as illegal and impermissible. As far as certain inconsistencies regarding the first objectionable act on the part of accused No.1 whether it was in the night or in day time, whether the next series of acts were immediately thereafter or later and the slight inconsistencies and contradictions in the narration of various instances are of little significance and consequence. A girl of tender age subjected to surcharged atmosphere in court, confronted with insinuating and humiliating torrent of questions is certainly likely to be confused and may get disoriented to certain extent. In such circumstances, either silence or some stray answers which go in favour of the defence cannot be taken out of context and given undue importance to doubt the version of P.W.1 especially when her evidence read as a whole is found to have a ring of truth. 61. In such circumstances, either silence or some stray answers which go in favour of the defence cannot be taken out of context and given undue importance to doubt the version of P.W.1 especially when her evidence read as a whole is found to have a ring of truth. 61. We have in detail referred to the evidence of P.W.1 since that is the solitary evidence adduced by the prosecution with regard to the various incidents both in Thai Resort at Parassinikadavu and at Mangalore. Embellishments and developments are there. But those embellishments and developments pointed out are not sufficient enough to create a doubt in the testimony of P.W.1 or to discard the same in toto. 62. As has been noticed in the various decisions, the court has to be sensitive to such an issue and understand the plight of the victim in such circumstances to call upon to depose in court regarding the horrendous and traumatic experience undergone by her. Having gone through the evidence of P.W.1 carefully and with certain amount of caution, we find no reason to reject the said evidence. 63. Having thus considered some of the common grounds of attack, we now turn to the role played by each of the accused. We have already noticed that except accused Nos.1, 11 and 12, all other accused, except accused No.2, who had absconded, did not seriously appraise this court the finding against them nor do they challenge the conviction and sentence against them since all of them had served out the sentence. 64. Nevertheless since appeals have been filed by them, we shall briefly consider the evidence against each of them reserving our appreciation of evidence against accused No.1 towards the end. 65. As far as accused No.3 is concerned, the evidence of P.W.1 has already been referred to. P.W.4 also says that accused No.3 had come to the house on a previous occasion and she had occasion to see him. The evidence of P.W.1 would show that accused No.3 is quite familiar to her and her evidence shows that he was seen in the company of her father more than one occasion. She then narrates the incident when she was taken to Thai Resort and she was made to wait in a room where later accused No.3 raped her. The evidence of P.W.1 would show that accused No.3 is quite familiar to her and her evidence shows that he was seen in the company of her father more than one occasion. She then narrates the incident when she was taken to Thai Resort and she was made to wait in a room where later accused No.3 raped her. P.W.1 also speaks about accused No.3 offering to purchase a vehicle for accused No.1 and then she speaks about the incident also. She also says about accused No.3 having paid money to accused No.1. There is no reason to disbelieve the version given by P.W.1 as against accused No.3. 66. P.W.1 then speaks about the frequent visits to Thai Resort at the instance and compulsion of accused No.1 and she speaks about the circumstances and the manner in which she was ravished by accused Nos.6, 8 and 10. She referred to accused No.5 as a room boy of Thai Resort. She mentions that on two occasions he too raped her and on one occasion he took away the money kept under the bed by accused No.1 and the harrowing experience she had when accused No.1 found out that the money had been taken away by accused No.5. Her evidence also shows that she does not disclose to accused No.9 that accused No.1 was her father in view of the fact that he asked her how she happened to gain acquaintance with a despicable person like accused No.1 and she had occasion to hear accused No.1 mentioning to accused No.9 that P.W.1 was his neighbour. She gives detailed version regarding the acts committed on her by accused Nos.6 and 8 to 10 in two rooms in Thai Resort, namely, room Nos.101 and 104. 67. It is significant to notice that all these persons were identified in all three rounds of identification parade conducted by the Magistrate who is examined as P.W.6 and who had filed Ext.P8 report. Even though P.W.1 might have had only one occasion to see accused Nos.6, 8, 9 and 10 in the light of the fact that they had been with her for quite sometime and she had traumatic experience at their hands and the fact that she could have easily noticed their features infact makes the identification parade conducted during the investigation stage insignificant. It would not have been difficult for P.W.1 to identify the above assailants. It would not have been difficult for P.W.1 to identify the above assailants. 68. A contention was sought to be taken that in case of accused No.8 he is alleged to have committed the objectionable act when the lights were switched off and under the circumstances the identification of accused No.8 cannot be accepted. It is also contended that his name does not figure in Ext.P1 report and the description given by P.W.1 may match any person and it was not proper to fix the liability on accused No.8. True, to some of the questions put on behalf of accused No.8, she did not give answers. However, a reading of the evidence of P.W.1 shows that it is convincing as against accused No.8 also. No acceptable reason is either suggested or established as to why he should be falsely implicated. One must remember that it was accused No.1 who was soliciting persons and therefore it is imprudent to insist that P.W.1 should have all the details about the persons who had committed violation of her body. However, one fact is very clear. Since she was subjected to brutal humiliating acts, in all probability she should have noticed the features of the person and the impression so gained would remain in her mind for a long time. 69. As far as accused Nos. 4 and 7 are concerned, they were in the company of accused No.1 and P.W.1 for quite sometime. Accused No.4 had taken them in the car and so did accused No.7. However, the evidence of P.W.1 discloses that accused No.7 did not commit the objectionable act in Thai Resort. As far as accused No.4 is concerned, P.W.1 speaks about the experience she had with accused No.4 in Thai Resort. The role of accused No.7 in violating the body of P.W.1 occurred at Mangalore in Sidhartha lodge. One may recollect the evidence of P.W.1 which is to the effect that accused No.7 had brought her a pair of new dress also. P.W.1 also speaks about accused Nos.7 and 4 having paid cash to her father. The evidence of P.W.1 also shows that at Mangalore on 6.7.2008 in the night accused No.7 violated her body on two occasions. The evidence of P.W.1 is clinching as against accused Nos.3 to 10 regarding their role in the violation of her body. 70. Next comes accused No.11. The evidence of P.W.1 also shows that at Mangalore on 6.7.2008 in the night accused No.7 violated her body on two occasions. The evidence of P.W.1 is clinching as against accused Nos.3 to 10 regarding their role in the violation of her body. 70. Next comes accused No.11. As against the other accused also, the solitary evidence against accused No.11 is also furnished by P.W.1. However, it needs to be noticed that in Ext.P1, which is the earliest and immediate version given by P.W.1, his name does appear and the act committed by him is also made mention of. The evidence adduced by the prosecution would suggest that the presence of P.W.1 at Mangalore was at the instance of accused No.11. Accused No.1, P.W.1 and accused No.7 reached Mangalore and accused No.11 joined them. It is thereafter they go to Sidhartha lodge. Of course, a person by name Shameer had also joined them. The evidence of P.W.1 discloses that on 6.7.2008 in Sidhartha lodge at Mangalore, P.W.1 spent the night in the company of accused No.7. If as a matter of fact she had been taken to Mangalore on demand by accused No.11, it is rather strange that he would have let accused No.7 to have the company of P.W.1 during the night. It also seems slightly odd that the next day morning he has waited for accused Nos.1 and 7 to leave the room and then attempted to commit rape on P.W.1. Whatever that be, the fact remains that accused No.11 was in the company of accused Nos.1 and 7 at Mangalore and going by Ext.P1, accused No.11 had caught hold of her. Ext.P1 only makes mention of accused No.11 having restrained her and does not mention fondling of her breast by him, which statement appears only at the time of evidence. It was probably this fact which had persuaded the court below to come to the conclusion that the offence as against accused No.11 is confined to Section 354 IPC. We find no reason to take a different view. However, it is felt that the sentence imposed on him is disproportionate to the offence committed by him and it is too severe. It is felt that some leniency needs to be shown in this regard. 71. We find no reason to take a different view. However, it is felt that the sentence imposed on him is disproportionate to the offence committed by him and it is too severe. It is felt that some leniency needs to be shown in this regard. 71. Coming to accused No.12, it cannot be said that the contention raised by him is totally baseless and his name does not figure in Ext.P1. That he was in Thai Resort is clear from the evidence. He is characterized as the Manager of the Resort. In support of the said allegation, the prosecution relies on Ext.P53 and the evidence of P.Ws.30 and 32 72. Even going by the evidence of P.W.30, P.W.31 and his mother became owners of Thai Resort in the year 2008. Ext.P53 is dated 4.8.2005 and is seen to have been issued by P.W.31. When P.W.31 and mother of P.W.30 became the owners of Thai Resort only in 2008, one fails to understand as to how P.W.31 could have issued Ext.P53 dated 28.4.2005. There is absolutely no evidence to show that prior to becoming owners in 2008, P.W.31 had anything to do with the Resort. At any rate, there is nothing to show that P.W.31 had any authority or occasion to appoint accused No.12 as the Manager of Thai Resort prior to 2008. 73. Here one has to notice the contention taken by accused No.12. He says that he had raised a dispute with the mother of P.W.30 regarding the wages and it ultimately resulted in his termination. He had drawn the last salary on 1.4.2008. Prosecution has produced Ext.P54 series to show the payment vouchers issued by accused No.12. There is nothing in those documents to show that accused No.12 has received the amounts as Manager of the Resort. It is significant to notice that Ext.P53 does not make mention of the salary to be paid to accused No.12. More significant is the fact that last among the series of Ext.P54 is dated 1.4.2008. The prosecution has not produced any voucher of subsequent dates to show that the claim of accused No.12 that he had received the last salary on 1.4.2008 is untrue. More significant is the fact that last among the series of Ext.P54 is dated 1.4.2008. The prosecution has not produced any voucher of subsequent dates to show that the claim of accused No.12 that he had received the last salary on 1.4.2008 is untrue. When the specific contention of accused No.12 was that he was not the Manager of the Resort and he had nothing to do with the Resort after 1.4.2008, the prosecution ought to have produced something to show that he was actually the Manager of the Resort and received salary in that capacity. 74. The prosecution takes the aid of Ext.P51 series of guest cards and Ext.P55 ledger and Ext.P55 (a) entries in Ext.P55 to nail accused No.12. The evidence of P.W.1 also shows the presence of accused No.12 on few occasions when accused No.1 had taken her to Thai Resort. But the question is whether mere presence, even assuming accused No.12 continued to work in Thai Resort even after 1.4.2008, is sufficient to bring him within the ambit of Sections 120B and 109 I.P.C. 75. At the outset itself it has to be stated that the offence under Section 120B IPC will not lie as against accused No.12. In the charge framed by court, the only allegation is that accused No.12 conspired with accused No.1 and hence accused No.12 is guilty of the offence punishable under Section 120B I.P.C. There is no corresponding charge against accused No.1 nor is there an allegation that accused No.1 and accused No.12 conspired together and in furtherance of the conspiracy, accused No.1 had taken P.W.1 to Thai Resort. In other words, the allegation of the offence of conspiracy is only against accused No.12. For the offence of conspiracy, there must be atleast two persons. Since there is no charge of conspiracy as against accused No.1, one cannot uphold the finding against accused No.12 alone for the offence of conspiracy. 76. Even otherwise, on the evidence adduced by the prosecution, it is difficult to come to the conclusion that there is a conspiracy between accused No.12 and accused No.1. Since there is no charge of conspiracy as against accused No.1, one cannot uphold the finding against accused No.12 alone for the offence of conspiracy. 76. Even otherwise, on the evidence adduced by the prosecution, it is difficult to come to the conclusion that there is a conspiracy between accused No.12 and accused No.1. As rightly pointed out by the counsel for accused No.12 neither P.W.30 nor P.W.31 say that they are familiar with the handwriting and signature of accused No.12 and the entries in Ext.P55 register marked as Ext.P55(a) are in the handwriting of accused No.12 nor do they say that the signature found in Exts.P51 and P51(a) are that of accused No.12. One of the modes of proving the handwriting and signature is by examination of a person who is familiar with the disputed handwriting and signature. One can also seek expert opinion. Unfortunately in the case on hand Exts.C1 and C2 were marked as court exhibits which are opinions regarding the handwriting and signature examined by the expert. However, the report furnished by the Forensic Lab is inconclusive. Strangely enough, the court take recourse to Section 73 of the Indian Evidence Act and found that the handwriting found in Ext.P55(a) and the signature found in Ext.51 series of documents are that of accused No.12. The approach made by the court was quite unwarranted in the circumstances of the case. When the prosecution has examined persons who are familiar with the handwriting and signature of accused No.12 and they have not spoken that the entries in the register are in the handwriting of accused No.12 and the signature is that of accused No.12 and Exts.C1 and C2 go against the prosecution, the course adopted by the court below in comparing the signature taking aid of Section 73 of the Evidence Act was improper. Of course the court is empowered to do so. But that is only in exceptional circumstances. The Apex Court had occasion to consider the application under Section 73 of the Evidence Act and in fact has even held that for taking recourse under Section 73 of the Act, the court should give reasons as to why it finds that the signature or the handwriting are similar. Therefore the conclusions drawn by the court below based on the comparison of the signature cannot be accepted. 77. Therefore the conclusions drawn by the court below based on the comparison of the signature cannot be accepted. 77. Equally doubtful is the version given by the prosecution that accused No.12 was the employee of the resort. Reference has already been made to P.W.53 so also Ext.P51 series of documents and Exts.P55 and P55(a). Here, one has to notice the anxiety on the part of P.W.30 to save accused No.5. P.W.30 says that accused No.5 was the domestic servant and he rarely used to go to the resort. This is belied by the evidence of P.W.1 which has already been referred to in detail. On almost all occasions when she was taken to Thai Resort she had occasion to see accused No.5 there and she was raped twice by accused No.5. On one occasion, he took away the money kept under the bed by accused No.1 so that P.W.1 has to face the wrath of accused No.1. The version of P.W.30 therefore cannot be taken as true and trustworthy and so is the case with P.W.31. Further, the evidence of D.W.6 taken along with Exts.D7 and D8 to a great extent belie the version given by P.W.30 that he had nothing to do with the resort. The telephone installed in Thai Resort going by the evidence of D.W.6 and Exts.D7 and D8 show that it is in the name of P.W.30. Moreover P.W.30 betrayed himself when he, in his evidence, stated that when the investigating officer, P.W.35, had seized the registers and documents from Thai Resort, accused No.12 telephoned him and conveyed the message to him. If as a matter of fact, P.W.30 had nothing to do with the Resort, it was unnecessary and improbable that accused No.12 would have been anxious enough to inform P.W.30 about the seizure. On the basis of the materials now available, the evidence of P.Ws.30 and 31 to the effect that accused No.12 is the manager of the resort is open to serious doubt. 78. Apart from the above facts, all that accused No.12 is alleged to have done is to serve food and water to accused No.1, P.W.1 and others who came to the Resort to meet P.W.1. Almost on all occasions accused No.5 was also present. If he was a room body, it is he who had to serve food and water to the guests. Almost on all occasions accused No.5 was also present. If he was a room body, it is he who had to serve food and water to the guests. Merely because accused No.12 served food for the guests or provided rooms for accused No.1 does not lead to the conclusion that there was either conspiracy between accused Nos.1 and 12 or accused No.12 had abetted in the acts committed by accused No.1. True, P.W.1 has stated that she overheard accused No.12 saying over telephone "the thing has arrived". But there is nothing to show that he had solicited any person to come to the Resort and take advantage of P.W.1. There is nothing to show that he had any active or passive role in the activities designed and carried out by accused No.1. May be that he was aware of what was going on in the rooms in Thai Resort. But merely because he did not object to the said conduct, that could not lead to the inference that he has abetted the offence. In order to become an abettor, he should have to do one of the things that fall under Section 107 of IPC. Section 107 reads as follows: "107. Abetment of a thing.-a person abets the doing of a thing, who-First.- Instigates any person to do that thing; or Secondly.-Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.-Intentionally aid, by any act or illegal omission, the doing of that thing. Explanation 1.-A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing." Clause 2 has no application. As far as clause 1 is concerned, there is absolutely no evidence at all to show that accused No.12 had instigated accused No.1 to commit the objectionable acts. Nor there is anything to show that it was at the instance of accused No.12 that accused No.1 had committed the acts. As far as clause 3 is concerned, it takes within its ambit a commission or omission. Nor there is anything to show that it was at the instance of accused No.12 that accused No.1 had committed the acts. As far as clause 3 is concerned, it takes within its ambit a commission or omission. Providing of room on demand by accused No.1 and merely serving food cannot by themselves taken as instances of commission or omission on the part of accused No.12 of intentionally aiding the commission of the illegal act. Instigation involves active suggestion or stimulation by some other means. It in fact means to provide or undertake to do a particular act. There is nothing to show or brought out in evidence by the prosecution to establish that either accused No.1 or anyone of the other accused had acted at the instigation of accused No.12. It is well settled that mere acquaintance does not mean instigation. No positive act is proved on the part of accused No.12 to show that he was an abettor to the offence. In the decision reported in Ranganayaki v. State (AIR 2005 SC 418) it was held as follows: "The instigation must be with reference to the thing that was done and not to the thing that was likely to have been done by the person who is instigated. It is only if this condition is fulfilled that a person can be guilty of abetment by instigation. Further, the act abetted should be committed in consequence of the abetment or in pursuance of the conspiracy as provided in the Explanation to Section 109 IPC. Under the Explanation an act or offence is said to be committed in pursuance of abetment if it is done in consequence of instigation, conspiracy or with the aid of constituting abetment. Instigation may be in any form and the extent of the influence which the instigation produced in the mind of the accused would vary and depend upon facts of each case." As far as the offence of abetment is concerned, a reading of Section 107 of IPC taken along with the principle laid down in the above decision, it is extremely difficult to hold that accused No.12 was an abettor to the offence. The finding of the court below in this regard cannot be accepted. 79. Now coming to accused No.1, the less said the better. The evidence of P.Ws.1, 4 and 9 stares in his face. The finding of the court below in this regard cannot be accepted. 79. Now coming to accused No.1, the less said the better. The evidence of P.Ws.1, 4 and 9 stares in his face. The conduct of accused No.1, to say the least is most disturbing and disgusting. His role in the various incidents have been spoken to elaborately by P.W.1. She has also given her reasons as to why she did not disclose her trauma to anybody and how ultimately she had to confess before her mother, namely, P.W.4. The explanation offered by the first accused when being questioned under Section 313 Cr.P.C. is most unconvincing. His attempt even at the time of cross-examination of P.Ws.1 and 4 was to stigmatize them with unfounded and baseless allegations. He very stoutly disputed the date of birth of P.W.1. His anxiety was to establish that she was over the age of 16 when taken to Thai Resort. His endeavour was to establish that P.W.1 was a consenting and willing party to various incidents that took place in Thai Resort and the incidents at Mangalore. The attempt, to say the least, is most reprehensible. The reasons given as suggested by the first accused for accusing him of what he has done are not established. It is true that P.W.1's evidence would show that she had relationship with certain persons which had come to the notice of accused No.1. Even assuming it to be true, it is beyond comprehension that P.W.1 would go to the extent of falsely accusing the first accused of rape on her and taking her to Thai Resort and Mangalore for prostitution. There is no challenge to the evidence of P.W.1 to the effect that she was frequently taken to Thai Resort on the pretext of cassette recording and she was forced to undergo illicit intercourse with others. His claim that unable to put up with the stern warning given to P.Ws.1 and 4 about their loose way of life was the reason for falsely implicating him in the case on hand to say the least is ridiculous. His another suggestion to P.Ws.1 and 4 is political vendetta. 80. True, the evidence of P.Ws.1 and 4 show that certain organizations did support them and aided them. But that by itself is insufficient to come to the conclusion that the accusations against accused No.1 are false and manipulated. 81. His another suggestion to P.Ws.1 and 4 is political vendetta. 80. True, the evidence of P.Ws.1 and 4 show that certain organizations did support them and aided them. But that by itself is insufficient to come to the conclusion that the accusations against accused No.1 are false and manipulated. 81. At the risk of repetition, one may observe that it is extremely difficult to believe that P.Ws.1 and 4 would mount such an allegation against her father and husband respectively without any basis at all. There is nothing to show that the evidence of P.W.1 as against accused No.1 is suspicious or baseless. It is inconceivable that by raising false allegations against accused No.1, who is none other than the father of P.W.1 and the husband of P.W.4, they will intentionally put their life in jeopardy and ridicule. After all, accused No.1 had nothing much to lose. Even though the evidence of P.W.1 suffers from insignificant and inconsequential infirmities, her evidence as against accused No.1 is so glaring that the role of accused No.1 in the various episodes is clearly established. 82. One has to necessarily appreciate the deplorable and agonizing situation in which P.W.1 was placed. One has to put oneself in her position. The situation of a hapless and helpless young girl ripped and raped by her own father and then her father taking her from place to place offering her to persons with the intent of making money is indeed pitiable. A person, who is to safeguard, protect and ensure the wellbeing of his children, has turned out to be otherwise. None of the contentions raised on behalf of the first accused is tenable or acceptable. 83. The evidence of P.Ws.1, 4 and 9 are sufficient to show the complicity of accused No.1. Apart from the fact that the evidence of P.W.1 shows that accused No.1 had committed sexual assault on her, her evidence is also sufficient to show that the necessary ingredients to invoke Section 366A are attracted. In order to bring the guilt under Section 366A IPC, the prosecution has to establish the following ingredients: (i) The minor girl was induced by the accused.(ii) That she was induced to go to a place. (iii) She was induced to do so or to do any act in which she was likely to be forced and subjected to have intercourse with another person. (iii) She was induced to do so or to do any act in which she was likely to be forced and subjected to have intercourse with another person. To recall the evidence in this case, P.W.1, as already noticed, had not completed the age of 16 as on the date of the incident at Thai Resort as well as at Mangalore. She was forced to go along with him both under threat and coercion and in the pretext that she was being taken for cassette recording. The rest has already been stated. The first accused was rightly found guilty for the offence under Sections 366A and 376 IPC. 84. As regards of the offence punishable under Section 120B is concerned, we are unable to uphold the finding of the lower court as against accused No.1. It has already been noticed that there is no specific charge as against accused No.1 for the offence of conspiracy. The issue has been considered while dealing with the case of accused No.12 and need not be repeated. The conviction and sentence as against accused No.1 for the offence under Section 120B IPC cannot stand. 85. As rightly noticed by the court below, no leniency needs to be shown to the first accused at all. The sentence imposed by the court below also seems justified. 86. We are, however, unable to support the views expressed by the lower court against Adv. P.K. Sajeevan which are quite uncalled for. The court has to keep its composure and shall not be overcome with emotion. However reprehensible the conduct of counsel may be, the court should restrain itself from making such observations about a counsel. We therefore expunge the remarks made by the court below as against Adv. P.K. Sajeevan. These appeals are disposed of as follows: (i) Crl. Appeal No.134 of 2010 filed by the first accused is partly allowed and his conviction and sentence for the offence under Section 120B IPC is set aside and he stands acquitted for the said offence. However, his conviction for the offences punishable under Sections 366A and 376 are confirmed and so also the sentences awarded to him for the said offences. He will be entitled to set off as per law in case appropriate authority seeks to exercise power under Sections 432 and 433 Cr.P.C. (ii) Crl. However, his conviction for the offences punishable under Sections 366A and 376 are confirmed and so also the sentences awarded to him for the said offences. He will be entitled to set off as per law in case appropriate authority seeks to exercise power under Sections 432 and 433 Cr.P.C. (ii) Crl. Appeal Nos.881, 885, 886, 893, 918, 925 and 930 of 2009 are dismissed confirming the conviction and sentence as against the respective appellants for the offence punishable under Section 376 IPC. (iii) In Crl. Appeal No. 899 of 2009 filed by accused No.11, while confirming his conviction for the offence under Section 354 IPC, the sentence awarded against him is set aside and instead his sentence is modified as to sentence of imprisonment for the period already undergone by him. (iv) Crl. Appeal No.1952 of 2009 filed by accused No.12 is allowed and it is found that he is not guilty of the offences punishable under Sections 109 and 120B IPC. The conviction and sentence passed against him for those offences are set aside and he stands acquitted of the said offences. If he has paid the fine amount as awarded by the court below, the same shall be refunded to him.

Hameed T. Abdulla v. Koyenco Autos Private Limited