Judgment :- 1. The appellants are the accused 1 & 2 in S.C.No.213 of 2004 on the file of the learned Additional District and Sessions cum Fast Track Court No.II, Tuticorin. Altogether, including the appellants, there were three accused. These two appellants each stood charged for the alleged offences under Sections 450, 376(2)(g) and 506(ii) of IPC and the third accused stood charged for the offences under Sections 506(ii) and 376(2)(g) r/w 109 of IPC. The trial Court, by judgment dated 30.08.2005, found all the three accused guilty of all charges, except the third accused for the charge under Section 376(2)(g) r/w 109 of IPC and accordingly punished them. For the offence under Section 450 IPC, the appellants/A1 & A2 have been sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1000/- each, in default to undergo rigorous imprisonment for six months; for the offence under Section 376(2)(g) of IPC, they have been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1000/- each, in default to undergo rigorous imprisonment for six months and for the offence under Section 506(ii) of IPC, they have been sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1000/- each, in default to undergo rigorous imprisonment for six months. The third accused has been sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1000/-, in default to undergo rigorous imprisonment for six months for the offence under Section 506(ii) of IPC and he was acquitted from the charge under Section 376(2)(g) r/w 109 of IPC. Challenging the above conviction and sentence, the appellants/accused 1 & 2 are before this Court with this appeal. 2. The case of the prosecution in brief is as follows; (a) PW1 is a resident of Pullaveli Village, Tuticorin District. She was separated from her husband and thus she was living with her parents, who were residing in a hut at a salt pan. There were similar huts in that locality where the other workmen in the salt pan were residing like PW1 and her parents. On 11.09.2003 at about 10.00 p.m., PW1 was in the hut, and PW2 – father and PW3 – mother of PW1 were sitting in front of the hut. At that time, all the three accused came there, each armed with a knife. On 11.09.2003 at about 10.00 p.m., PW1 was in the hut, and PW2 – father and PW3 – mother of PW1 were sitting in front of the hut. At that time, all the three accused came there, each armed with a knife. They brandished their knives against PWs.2 & 3 and enquired where PW1 was and came to know that PW1 was in the hut. Then, A3 stayed back outside the hut. With the intention to commit rape on PW1, A1 & A2, with knives, entered into the hut where PW1 was staying. Inside the hut, A1 initially raped PW1, followed by A2. Till 06.00 a.m. these two accused were inside the house. Thereafter, they left the house. While leaving they also criminally intimidated PW1 and her parents. After these accused had left, PWs.1 to 3 did not choose to make any complaint immediately, but they proceeded to Mullakadu Village and stayed at the house of a cousin of PW1. (b) On 14.09.2003 at about 11.00 a.m. PW1 lodged a complaint to the Police. PW11 was the then Special Sub Inspector of Police attached to Aathur Police Station. On the basis of the above information laid by PW1, PW11 registered a case in Crime No.144 of 2003 under Sections 506(ii), 458 and 376 of IPC. Ex.P1 is the complaint and Ex.P13 is the FIR. PW11 then forwarded Ex.P1 and P13 to the Court and handed over the case diary to PW13 for investigation. PW13, the then Inspector of Police, attached to Aathur Police Station, took up the case for investigation. He examined PWs.1 to 3 and other witnesses. He recovered a polyester Saree worn by PW1 at the time of occurrence. He examined PWs.1 to 11 and recorded their statements. He sent PW1 to Government Hospital, Tuticorin for medical examination. PW12 - Dr.Manjula examined her on 16.09.2003 at 10.15. a.m. She told by PW1 that she was raped by two unidentifiable persons on 11.09.2003 between 9.00 p.m. to 10.00 p.m. On examination she found that hymen was not intact. There was also injury on the external genitalia of PW1. She found that PW1 had been subjected to sexual intercourse. (c) Continuing the investigation, PW13 arrested all the three accused on 16.09.2003 at 05.30 p.m. and on the confession of A1, PW13 recovered his inner-garments in the presence of witnesses. There was also injury on the external genitalia of PW1. She found that PW1 had been subjected to sexual intercourse. (c) Continuing the investigation, PW13 arrested all the three accused on 16.09.2003 at 05.30 p.m. and on the confession of A1, PW13 recovered his inner-garments in the presence of witnesses. Similarly on the confession of A2, PW13 recovered his underwear and a knife. Then, on the confession of A3, he recovered a knife from the place where it was hidden. On the confession of A1, on the same day, he recovered a knife. On returning to the Police Station, he forwarded a report to the Court for remand. PW8 - the Doctor examined the accused 1 & 2 and found that they were not impotents. On completing the investigation, PW13 laid the charge sheet. 3. Based on the above materials, the trial Court framed appropriate charges as detailed herein above. In order to prove the case, the prosecution examined as many as 13 witnesses and marked 24 documents (Exs.P1 to P24) and 9 material objects (MOs.1 to 9). PW1 has spoken to about the occurrence. PWs.2 & 3, who are the parents of PW1, have also spoken to about the occurrence. PWs.4 & 5 have turned hostile and they have not supported the case of the prosecution in any manner. PW6 is the Village Administrative Officer and he spoken to about the seizure of material objects. PW9 - another villager has also turned hostile. PW10 has spoken to about the fact that PW1 and her family members were residing in a hut in the salt pan. PW8 - Dr. Sundarraj has spoken to about the medical examination conducted on A1 & A2. PW12 has spoken to about the medical examination conducted on PW1. PW11 has spoken to about the registration of the case and PW13 has spoken to about the investigation. When the accused were questioned under Section 313 of Cr.P.C. in respect of the above incriminating materials, they denied the same as false. No oral and documentary evidence was let in by the accused. Having considered all the above, the trial Court convicted the accused and punished them as I detailed in the first paragraph of this judgment. Hence, this appeal before this Court. 4. No oral and documentary evidence was let in by the accused. Having considered all the above, the trial Court convicted the accused and punished them as I detailed in the first paragraph of this judgment. Hence, this appeal before this Court. 4. I have heard the learned senior counsel appearing for the appellants and the learned Additional Public Prosecutor appearing for the respondent and also perused the records carefully. 5. The learned senior counsel appearing for the appellants would submit that there is inordinate delay in preferring the complaint to the Police and the same has not been explained. This, according to the learned senior counsel would create doubt about the case of the prosecution. Secondly, there are lot of contradictions between the evidences of PWs.1 and 2 in respect of the alleged occurrence. He would further point out that according to PW1, she was with A1 & A2 between 10.30 p.m. and 6.00 a.m. without raising any alarm. PWs.2 & 3 also did not raise any alarm. This conduct of PWs.1 to 3 would falsify the case of the prosecution, the learned senior counsel submitted. He would further submit that PW1 told the Doctor that she was raped by unidentifiable persons. During the course of cross examination, PWs.1 & 2 said they did not know the names of the accused at the time when they went to the Police Station to make the complaint. Surprisingly in the complaint the names of the accused have been vividly mentioned. This, according to the learned senior counsel, would show that the FIR has been fabricated. The learned senior counsel would further submit that even the medical evidence does not corroborate the eyewitness account. At any rate, according to the learned senior counsel, there are lot of doubts in the case of the prosecution and the accused are therefore entitled for acquittal. 6. The learned Additional Public Prosecutor would however vehemently oppose the appeal. According to him, the delay in this case is quite natural, because PWs.1 to 3 were frightened by the act of the accused and that is the reason why, they could not go to the Police Station immediately after the occurrence. The learned Additional Public Prosecutor would further submit that the contradictions pointed out by the learned senior counsel appearing for the appellants/accused are trivial and immaterial. The learned Additional Public Prosecutor would further submit that the contradictions pointed out by the learned senior counsel appearing for the appellants/accused are trivial and immaterial. Therefore, according to him, these contradictions would not in any manner make any dent in the case of the prosecution. The learned Additional Public Prosecutor would further submit that though PW3 did not speak about the occurrence, PWs.1 & 2 spoke about the occurrence in detail without any contradictions. He would further submit that there is a legal presumption against the accused that they had committed heinous crime. The learned Additional Public Prosecutor would submit that there is no reason to disbelieve the evidence of victim of the heinous crime. Thus, according to the learned Additional Public Prosecutor, the prosecution has proved the case beyond any reasonable doubt. 7. I have considered the above submissions. 8. At the outset, I should say that it cannot be expected that in every case of rape either the victim or her relative should rush to the Police Station immediately after the occurrence with a complaint, because it involves the modesty of the girl and her future also. The victim and her family members would be in trauma and highly confused as to the next course of action. It, normally, therefore, would take some time for them to come to normal and then to go with a complaint to the Police. Therefore, on the ground of delay in preferring the complaint alone in a case of heinous offence of rape, the case of the prosecution cannot be doubted. But, at the same time, if the delay is inordinate and if it remains unexplained, it is also a matter to be considered by the Court while appreciating the evidence. In the case on hand, it is alleged that immediately after the occurrence, they had gone to the house of a cousin of PW1, but they did not choose to inform about the occurrence even to him. There is delay of about three days in making the complaint. But, as I said earlier, this delay itself is not a ground to acquit the accused. 9. Nextly, according to the appellants, PW2 deposed that three accused came, each one armed with a knife. Then, they brandished the knives against PWs.2 & 3 and enquired where PW1 was. A3 stayed back outside the hut and A1 & A2 entered into the house. 9. Nextly, according to the appellants, PW2 deposed that three accused came, each one armed with a knife. Then, they brandished the knives against PWs.2 & 3 and enquired where PW1 was. A3 stayed back outside the hut and A1 & A2 entered into the house. But, PW1 has made a contradictory statement. According to her, she found only A1 & A2 quarrelling with PW2 and she found A1 & A2 alone enquiring PWs.2 & 3 about her. Then, A1 & A2 entered into the house and no where she has stated about the presence of A3. This, in my considered opinion, is a material contradiction between the evidences of PW1 and PW2. Unfortunately the neighbours of PW1 have not been either examined or those who were examined did not support the case of the prosecution. Thus, the evidence of PW1 and PW2 carry doubt. 10. PW2 has stated that A1 & A2 had gone into the house, armed with knives. But, PW1 has not stated that these two accused were armed with any weapon. Her chief examination proceeds to indicate that A1 & A2 entered into the house without any weapon. This, in my considered opinion, is yet another material contradiction between the evidences of PW1 and PW2. 11. Thereafter, inside the house, it is alleged that A1 raped PW1 first, followed by A2. According to her, the act of rape was committed once by A1 and once by A2 in succession and they did not repeat. But, according to her evidence in cross examination, A1 & A2 had left the house only in the morning at 6 O'clock. That means between 10.30. p.m. and 06.00 a.m. A1 & A2 were inside the house along with PW1. It is not her evidence at all that during this long period of stay, A1 & A2 had threatened her at all. Thus, for about seven and half hours it goes as though these accused were staying inside the hut that too with PW1. It is not explained to the Court as to why PW1 did not raise any alarm during the said period. Had it been true that those accused were inside the house for such a long time, she would have definitely raised alarm. PWs.2 & 3 also did not raise any alarm. It is not explained to the Court as to why PW1 did not raise any alarm during the said period. Had it been true that those accused were inside the house for such a long time, she would have definitely raised alarm. PWs.2 & 3 also did not raise any alarm. During the course of cross examination, PW1 would further say that at 6.00 a.m. A1 and A2 left the house and PWs.2 & 3 saw them, but they did not say anything against them. This conduct of PWs.2 & 3 also would raise a doubt about the case of the prosecution. 12. After the occurrence, neither PW1 nor PW2 informed about the occurrence to any neighbour. It may be argued that they did not want to disclose the heinous crime to any one. It may appear to be acceptable, but, even after they had gone to the house of the cousin of PW1, they did not say anything even to him. This raises some more doubt in the case of the prosecution. 13. During the chief examination PWs.1 & 2 have categorically stated that they saw the accused 1 & 2 for the first time only at the time of occurrence and that they did not know their names. Quite surprisingly the names of these accused have been very vividly mentioned in the FIR itself. It is not known as to how their names came to be mentioned in the FIR. Thus, I find force in the argument of the learned senior counsel appearing for the appellants that the FIR is a fabricated document. Considering the long delay in preferring the complaint and the alleged fabrication of the FIR would create more doubt about the case of the prosecution. 14. Nextly, when PW1 was taken to PW12 -Doctor for examination, on her own volition, she told the Doctor that she was raped by two unidentifiable persons. In fact, she was sent for medical examination, after the FIR was registered. Thus, it is crustal clear that until she was examined by the Doctor, she was not aware of the names of the accused. When that be so, it is not known as to how the names of the accused came to be mentioned in the FIR. Further, PW1 has admitted during the course of cross examination that she did not know about the contents of Ex.P1 at all. When that be so, it is not known as to how the names of the accused came to be mentioned in the FIR. Further, PW1 has admitted during the course of cross examination that she did not know about the contents of Ex.P1 at all. Who drafted the complaint is also not known. Nobody has been examined on that aspect also. These facts also create doubt in the case of the prosecution. 15. It is submitted by the learned Additional Public Prosecutor that since it is a gang rape, there is a legal presumption against the accused that they have committed the heinous crime. In this regard, I have to state that any such presumption is undoubtedly rebuttable. In this case, even to raise such presumption, this Court found some difficultly because of the contradictions and improbabilities noticed in the evidence of PWs.1 & 2. Therefore, this argument of the learned Additional Public Prosecutor deserves only to be rejected. 16. In view of the foregoing discussions, I hold that the prosecution has failed to prove the case beyond all the reasonable doubts. Therefore, the appellants /accused are entitled to the benefit arising out of these doubts and accordingly they are entitled for acquittal. 17. In the result, this criminal appeal is allowed and the conviction and sentence imposed on the appellants/accused 1 & 2 in S.C.No.213 of 2004 are hereby set aside and they are acquitted. The bail bonds executed by them shall stand terminated. The fine amount, if any, paid shall be refunded to them.