JUDGMENT : 1. These appeals have been preferred by the accused Nos. 1 to 4 in S.C. No. 22 of 2019 on the file of the Additional Sessions Judge (For the Trial of Cases relating to Atrocities and Sexual Violence against Women and Children), Ernakulam. They were charged for having committed offences punishable under Sections 120B, 366 r/w. Section 34, 366A, 376(2)(n), 376D of the IPC and Section 5(l) r/w. Section 6, 5(g) r/w. Section 6 of the Protection of Children from Sexual Offences Act, 2012 and Section 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015. 2. By the impugned judgment: (A) the accused Nos. 1 to 4 were found guilty for the offence under Section 376D of the IPC and Section 6 r/w. Section 5(g) of the POCSO Act, 2012 and they were sentenced to undergo rigorous imprisonment for a period of 20 years each and to pay a fine of Rs.25,000/- each with a default clause. No separate sentence was ordered under the POCSO Act. (B) the accused Nos. 1 and 2 were found guilty and were sentenced to undergo rigorous imprisonment for a period of 5 years each and to pay a fine of Rs.10,000/- each under Section 366 r/w. Section 34 of the IPC with a default clause. (C) Accused No. 2 was found guilty and was sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs10,000/- under Section 366A of the IPC with a default clause. (D) Accused No. 1 was found guilty and sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.10,000/- under Section 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Summary of the Prosecution Case: 3. The survivor is a minor girl aged 16 years. The 1st accused had a brief affair with her for a period of about 6 months and thereafter, they parted ways when she understood that he was having other relationships. The prosecution alleges that the accused hatched a conspiracy to abduct the survivor and to rape her. On 13.10.2018, at about 9 p.m. the 1st accused called the survivor on her mother’s phone and informed the survivor that he was leaving for Bangalore the next day and expressed his desire to meet her. She was taken by the 2nd accused in his bike bearing Reg. On 13.10.2018, at about 9 p.m. the 1st accused called the survivor on her mother’s phone and informed the survivor that he was leaving for Bangalore the next day and expressed his desire to meet her. She was taken by the 2nd accused in his bike bearing Reg. No. KL-07-Temp-2626 to Fort Kochi Beach Walkway and to the breakwater nearby The accused Nos. 1 to 4, who were present there, forced her to drink beer from a bottle and to smoke a cigarette. She became unconscious immediately thereafter. It is alleged that while she was not in a conscious state, the accused subjected her to penetrative sexual assault by the side of a concrete barrier near the breakwater. Thereafter, she was taken to a multi-storeyed building by name “Jewel Arcade” situated at Layam Road, Ernakulam, and was again subjected to penetrative sexual abuse by laying her on the floor of the corridor on the 2nd floor of the building. After taking her to various places, She was finally dropped at a place called Manacherry from where she reached her home at 9.00 a.m. on 14/10/2018. On the next day, she called Childline and divulged the incident. They intimated the police and set the law in motion. Registration of the Crime and the Investigation: 4. Based on Ext.P1 information furnished by the survivor at 12.30 p.m. on 16.10.2018, at her residence, Ext.P20 FIR was registered at 3.40 p.m. On 17.10.2018, PW23, the Assistant Commissioner of Police, took over the investigation. He seized the clothes worn by the survivor as per Ext.P17 Mahazar and the same was forwarded to the court. The clothes were then forwarded to the Forensic Science Lab. Thereafter, he prepared Ext.P2 mahazar of the spot from where the survivor was picked up by the 2nd accused. Thereafter, he prepared Ext.P18 Mahazar identifying the place at the breakwater behind the Cochin Club where the survivor was taken initially and she was allegedly forced to drink the beer. A2 to A4 were arrested on 17.10.2018 and they were produced before court. A1 was arrested on 20.10.2018. After getting the police custody of the accused, and based on the disclosure statement given by them, the accused were taken to the 2nd floor of the Jewel Arcade, Ernakulam where the survivor was brought and violated by the accused. The space was located as the corridor between room Nos. A1 was arrested on 20.10.2018. After getting the police custody of the accused, and based on the disclosure statement given by them, the accused were taken to the 2nd floor of the Jewel Arcade, Ernakulam where the survivor was brought and violated by the accused. The space was located as the corridor between room Nos. 8C and 8D, and Ext.P3 Mahazar was prepared. The bike which was used by the 2nd accused for transporting the survivor was seized on 26.10.2018, as per Ext.P4 Mahazar. The bike of the 3rd accused, which was used to travel from Thoppumpady to Jewel Arcade was seized on 25.10.2018, as per Ext.P19 Mahazar. As the offence under Section 77 of the Juvenile Justice Act, 2015 was found to have been committed, Ext.P27 report was forwarded to the Court. A request was made to the Cyber Cell to obtain the tower location and call details of the accused. After complying with all the necessary formalities, the final report was laid before the Court. The Charge and the proceedings before the Sessions Court: 5. On receipt of records, the prosecution records were furnished to the accused and after hearing the prosecution as well as the defence, a charge under Sections 120B, 366 r/w. Section 34, 366A, 376(2)(n), 376D of the IPC and Section 5(l) r/w. Section 6, 5(g) r/w. Section 6 of the Protection of Children from Sexual Offences Act, 2012 and Section 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015, was framed against the accused. In the peculiar facts of the case, we deem it proper to extract the Court charge: “Firstly: That, you A1 to A4 in the night on 13.10.2018 in Thoppumpady Village, gang raped CW-1, a minor girl aged 16 years from the bund No. 2, situated on the western side of Cochin Club in the beach at Fort Kochi and also from the landing of the staircase to room No. 8-C, 8-D in the 2nd floor of an apartment namely ‘Jewel Arcade’ situated in the Layam road nearby to the Wood-Land Junction, Ernakulam in pursuance of your agreement and thereby, committed offence punishable u/s. 120B of IPC, which is within my cognizance. Secondly: That, you A1 to A4, in furtherance of your common intention, kidnapped CW-1, a minor girl, aged 16 years, knowing that she will be seduced to sexual intercourse and thereby, committed the offence punishable u/s.366 r/w.34 of IPC, which is within my cognizance. Thirdly: That, you A2, procured CW-1, a minor girl, aged 16 years, knowing that she will be seduced to sexual intercourse with A1, A3, A4 and himself and thereby, committed the offence punishable u/s. 366A of IPC, which is within my cognizance. Fourthly: That, on the same day, time and place, you A1 to A4, repeatedly raped CW-1, a minor girl, aged 16 years and thereby, committed the offence punishable u/s. 376 (2) (n) of IPC, which is within my cognizance. Fifthly: That, on the same day, time and place, you At to A4 repeatedly committed penetrative sexual assault on CW-1, a minor girl, aged 16 years and thereby, committed the offence punishable u/s. 5 (l) r/w.6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, which is within my cognizance. Sixthly: That, on the same day, time and place, you A1 to A4, gang raped CW-1, a minor girl, aged 16 years and thereby, committed the offence punishable u/s. 376 (D) of IPC, which is within my cognizance. Seventhly: That, on the same day, time and place, you A1 to A4 committed gang penetrative sexual assault on CW-1, a minor girl, aged 16 years and thereby, committed the offence punishable u/s. 5 (g) r/w.6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, which is within my cognizance. Eighthly: That, on the same day, time and place, you A1 to A4, gave Ganja and beer to CW-1, a child and thereby, committed the offence punishable u/s. 77 of the Juvenile Justice (Care and Protection of Children) Act, which is within my cognizance.” 6. When the charge was read over and explained to the accused, they pleaded not guilty and claimed that they be tried. On the side of the prosecution, 24 witnesses were examined as PWs 1 to 24 and through them, Exts.P1 to P29 were exhibited and marked. After the close of the prosecution evidence, the incriminating materials arising from the evidence were put to the accused under Section 313 of the Cr.P.C. They emphatically denied the circumstances pointing to their guilt. On the side of the prosecution, 24 witnesses were examined as PWs 1 to 24 and through them, Exts.P1 to P29 were exhibited and marked. After the close of the prosecution evidence, the incriminating materials arising from the evidence were put to the accused under Section 313 of the Cr.P.C. They emphatically denied the circumstances pointing to their guilt. On finding that the accused could not be acquitted under Section 232 of the Cr.P.C. they were called upon to enter their defence. No evidence was adduced on the side of the defence. Findings of the learned Sessions Judge: 7. The learned Sessions Judge, after evaluation of the entire evidence, concluded that the survivor was a minor at the time of commission of the offence. The testimony of the survivor was found to be credible and trustworthy and the evidence of PW24, the officer of the Childline, was held to corroborate the evidence of PW1. The court also concluded that the medical certificate issued by PW9 can be used to corroborate the version of PW1. Section 106 of the Indian Evidence Act and Section 29 of the POCSO Act were invoked and the learned Sessions Judge was of the view that the failure of the accused to provide proper explanation for the action show their criminality. Though certain shortcomings were noted in the investigation, it was held that such deficiencies did not significantly impact the prosecution case. The court concluded that the evidence adduced by the prosecution clearly proved that the accused had abducted the survivor and that she was taken to Fort Kochi Beach and to Jewel Arcade and that she was subjected to rape. Contentions raised by the Appellant: 8. Crl. A. No. 626 of 2020 is filed by accused No. 1, Crl. A. No. 752 of 2020 is filed by accused No. 2, Crl. A. No. 527 of 2020 is filed by accused No. 3 and Crl. A. No. 674 of 2020 is filed by accused No. 4. 9. Sri. B. Raman Pillai, the learned Senior Counsel appearing for the 1st accused submitted that the entire prosecution case revolved around the evidence of PW1, the survivor. It is submitted that a proper and detailed evaluation of the evidence of the survivor would bring out the fact that the said witness is not wholly reliable. 9. Sri. B. Raman Pillai, the learned Senior Counsel appearing for the 1st accused submitted that the entire prosecution case revolved around the evidence of PW1, the survivor. It is submitted that a proper and detailed evaluation of the evidence of the survivor would bring out the fact that the said witness is not wholly reliable. Though several discrepancies, embellishments and inconsistencies were brought out by the defence which cast serious doubts on the evidence let in, those aspects were brushed aside by the learned Sessions Judge. According to the learned counsel, neither the medical evidence nor the scientific evidence probablise the case of the survivor. When the specific case of the survivor was that when she woke up, she found herself lying on a bed in a flat, the investigating officer, at the time of evidence, stated that he was not in a position to zero in on any such location. Instead, the corridor of a building occupied by offices has been fixed as the scene of crime. This would throw serious doubts on the case set up by the survivor. The parents of the survivor were examined as PW2 and PW3 and their conduct would throw serious doubts on the genuineness of the version of the survivor. Reference is made to the dates shown in the wound certificate and the evidence of PW24, the Officer of the Childline, and it is submitted that there is serious inconsistency as regards the date on which the survivor was allegedly subjected to sexual abuse. According to the learned Senior counsel, it is thoroughly improbable that an unconscious girl was taken in a bike to Jewel Arcade, a place about 20 km away from Fort Kochi, and thereafter, lifted up to the 2nd floor of a building without the same being noticed by security guards and others and thereafter be sexually abused in the corridor of the building. The learned counsel would urge that the Investigating officer controverted the version of the survivor that she found herself lying on a bed when she woke up by explaining that the survivor was delusional. This would undermine the very case of the prosecution. It is urged that there are serious flaws in the investigation. The learned counsel would urge that the Investigating officer controverted the version of the survivor that she found herself lying on a bed when she woke up by explaining that the survivor was delusional. This would undermine the very case of the prosecution. It is urged that there are serious flaws in the investigation. Though the call records and Tower Dump Details of the mobile phones used by the accused and the mother of the survivor were obtained, the same was not produced before the court as it would have gone against the version of the survivor and proved the innocence of the accused. Failure to produce the said materials would show that the electronic evidence obtained would not have supported the version of the survivor. The learned Senior counsel has referred to the observations in Rai Sandeep @ Deepu and Another v. State NCT of Delhi, (2012) 8 SCC 21 and it is submitted that to qualify as a sterling witness, the evidence has to be of very high quality and unassailable. The evidence of PW1, according to the learned counsel, will not fall into the said category. Reliance is also placed on Nirmal Premkumar v. State represented by Inspector of Police, (2024) SCC Online SC 260 wherein it was held that though the solitary evidence of the survivor is generally deemed sufficient to hold an accused guilty, the conviction cannot be sustained if the testimony is found to be unreliable and insufficient due to identified flaws and lacunae. 10. Ms. Saipooja, the learned counsel appearing for accused Nos. 2 and 4 adopted the arguments of the learned Senior Counsel. The learned counsel would urge that in the First Information Statement, the survivor has no case that she was subjected to penetrative sexual assault by the accused. All that she had stated that she was unconscious all through and when she woke up, she found herself in a bed in a room with the accused standing nearby. The investigating officer in his evidence concluded that the last part of the statement that she gained consciousness in an apartment was found to be false during the investigation. If that be the case, the finding of guilt arrived at by the learned Sessions Judge convicting the accused, who are all persons in their early 20s, for a period of 20 years is highly illegal. If that be the case, the finding of guilt arrived at by the learned Sessions Judge convicting the accused, who are all persons in their early 20s, for a period of 20 years is highly illegal. She would also highlight the subsequent conduct of the survivor and the conduct of the parents, who were examined as PWs 2 and 3, and it was argued that the same is thoroughly improbable and could not have been the basis for arriving at a finding of guilt. She would point out that the specific case of the survivor is that she was having her periods on the day on which she was subjected to penetrative sexual abuse. However, not even a speck of spermatozoa or any other body fluid was found anywhere near the scene or in the clothes of the survivor. When the survivor has no case that she had washed herself after waking up in the 2nd floor corridor of a building as alleged by the prosecution, the absence of body fluids on her clothes is fatal. The prosecution failed to adduce any evidence to show that the unconscious survivor was brought from Fort Kochi to the heart of Ernakulam city and she was taken up to the 2nd floor of a building without the same being noticed by any persons in the vicinity and without them being seen in the CCTVs kept in the buildings. Even the security personnel who was examined as PW7 did not notice the accused taking up the survivor to the 2nd floor of the building, that too, after lifting the shutters. Though the prosecution had a case that the survivor was raped firstly at Fort Kochi, no evidence was let in to substantiate the same. Insofar as the Jewel Arcade is concerned, where the rape is alleged to have been committed, there is a serious contradiction between the evidence of the survivor as well as the investigating officer. The failure to convincingly prove the scene of the crime would demolish the very truthfulness of the prosecution case. It is submitted that an evaluation of the evidence of PWs 1 and 24 would reveal that the survivor had given a statement on 15.10.2018, However, the said statement has not been placed before the court. The failure to convincingly prove the scene of the crime would demolish the very truthfulness of the prosecution case. It is submitted that an evaluation of the evidence of PWs 1 and 24 would reveal that the survivor had given a statement on 15.10.2018, However, the said statement has not been placed before the court. It is further submitted that the Call Data Records of the phones used by the accused and PW2, the mother of the survivor, could have clearly established and corroborated the case of the prosecution that the survivor had gone to Fort Kochi, then to Ernakulam, then to the hotel, to the bus stand, then to Thrissur and back and to the Ernakulam Railway Station and back to Fort Kochi. Though steps were taken to collect the CDR, the same has not been produced before the court. It can only be concluded that the same was not produced as it would have gone against the version of the survivor. It is further submitted that though there was not even a semblance of evidence against the 4th accused, he was also convicted for the offence under Section 376D of the IPC. In order to substantiate her contentions, reliance is placed on Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 and it is urged that when the medical evidence is inconsistent with the case of the prosecution and when the solitary evidence of the prosecutrix cannot be regarded as absolutely trustworthy and unblemished, no conviction can be entered into. The learned counsel would also refer to the judgment in Sasikumar P. v. State Rep. by the Inspector of Police, (2024) 8 SCC 600 and urged that in cases wherein the accused is a total stranger and when there is no test identification parade, the courts are required to be very cautious while accepting the dock identification. She would also urge that the age of the victim has not been properly proven as under Section 94 of the JJ Act, 2015, the date of birth certificate or the matriculation or the equivalent certificate from the concerned Examination Board is the document that is most preferable. There is no reason why such a document was not produced. She would also urge that the age of the victim has not been properly proven as under Section 94 of the JJ Act, 2015, the date of birth certificate or the matriculation or the equivalent certificate from the concerned Examination Board is the document that is most preferable. There is no reason why such a document was not produced. She would rely on the observations in Royson v. State of Kerala, 2017 KHC 1056 and it is urged that the version of the prosecutrix cannot be accepted as there are serious inconsistencies. 11. Sri. P.K. Varghese, the learned counsel appearing for the 3rd accused, reiterated the very same contentions. It is submitted that as against the 3rd accused, there was no credible evidence and the learned Sessions Judge has seriously erred in arriving at a finding of guilt. 12. In response, it is submitted by the learned Public Prosecutor that the prosecutrix is a minor girl, who was subjected to serious sexual abuse by the accused. She had entered the box and stated about her extremely traumatic experience. Some inconsistencies here and there are only natural. The mere fact that there are certain laches in the investigation conducted by the investigating agency is no reason to disbelieve the cogent and convincing testimony of the survivor. It is submitted that the survivor was administered alcohol and it was thereafter that she was subjected to sexual abuse. The fact that she was subjected to abuse is borne out from the medical records. She had also stated in her evidence that she felt pain when she woke up and that she saw the accused standing around her while she was lying nude. There is no reason to doubt the testimony of the survivor. It is further submitted that the absence of the spermatozoa was justified as the survivor was on her period. The mere fact that the investigating officer failed to collect the Call Data Records or the absence of body fluids in the clothes of the survivor will not in any way take away the sanctity and truthfulness of the evidence tendered by the survivor. It is further submitted that the defence had not even challenged the document produced by the prosecution to prove that the survivor is a minor and the birth certificate produced is in accordance with Section 94(2)(ii) of the JJ Act. It is further submitted that the defence had not even challenged the document produced by the prosecution to prove that the survivor is a minor and the birth certificate produced is in accordance with Section 94(2)(ii) of the JJ Act. She would contend that the submission of the learned counsel appearing for the accused that PW1 is not a sterling witness, cannot be sustained. She would point out that even if this Court finds that the investigation conducted in the case was defective or that the officer had failed to collect materials like CDR or the presence of blood in the clothes, what is required to be considered is whether the lapse committed by the Investigating Officer was of such a nature that no benefit could be conferred on the accused. Relying on the observations in C. Muniappan v. State of Tamil Nadu, (2010) 9 SCC 567 it was argued that that defect in the investigation by itself does not vitiate the prosecution’s case. 13. We have carefully considered the submissions advanced and have gone through the entire prosecution records. 14. Insofar as the minority of the survivor is concerned, we are of the view that the evidence let in by the prosecution by examining PWs 2 and 3, the parents of the survivor, and PW18 the Registrar Births and Deaths, Cochin Corporation through whom Ext.P15 birth certificate was marked established beyong doubt that the survivor was a minor as on 13.10.2018, the date on which the offence was allegedly committed. Evaluation of the evidence: 15. The issues that emerge for decision are: (i) Whether the evidence on record is sufficient to record conviction against A1 to A4 for the offences alleged against them? (ii) If the answer to the above issue is answered in the affirmative, what should be the appropriate punishment to be imposed on A1 to A4? 16. The entire prosecution case revolves around the evidence of PW1. She stated that she was born on 22.4.2002 and was residing at Thoppumpady along with her father and mother. Her father is a welder and her mother is a housewife. She had completed her +2 course at the St. Mary’s school, Amaravathi. She had an affair with the 1st accused, who is residing in the same locality. The affair lasted for 6-7 months. When she realized that the 1st accused was having another relationship, they fell apart. Her father is a welder and her mother is a housewife. She had completed her +2 course at the St. Mary’s school, Amaravathi. She had an affair with the 1st accused, who is residing in the same locality. The affair lasted for 6-7 months. When she realized that the 1st accused was having another relationship, they fell apart. On 12.10.2018, A1 called her on her mother’s phone and requested for money. She immediately told him that she is not in possession of any case. On the next day, i.e. on 13.10.2018 at about 8:30 p.m. A1 called her and informed her that he was leaving to Bangalore, the day after. She was told to get onto the bike of A2, which was parked outside, and come to Fort Kochi. Only her father was at home when she received the call. She told her father she would return back and went to Fort Kochi on a bike. When she reached there, A1, A2, A3, and another person, with whom she had no acquaintance, were there. She had previous acquaintance with A1 to A3. While they were sitting there, A4 left to buy beer and returned back with two bottles of beer. The 1st accused and others forced her to drink beer and put the bottle in her mouth. She drank the beer. Then they made her smoke a cigarette. The prosecution case is that it contained some narcotic substance. She then felt uneasy and became unconscious. She then woke up at about 2:00 a.m. She found herself lying on a bed in a room and she noticed that she was nude. The four accused were inside the room. She had pain all over her body and there were marks on her body. She stated that she was in her menstrual period. Immediately she wore her clothes. Thereafter, A3 and A4 left. She went along A1 and A2 on a bike and went to a nearby hotel and ate fried rice. After that, A1 and A2 took her on their bike to Thoppumpady. When they asked the survivor whether she wanted to go back home, she told him that she would disclose the incident to her family. In order to spend some time, they boarded a KSRTC bus and went to Thrissur. They had tea at Thrissur and then came back to Ernakulam. Then, the survivor went along with accused Nos. When they asked the survivor whether she wanted to go back home, she told him that she would disclose the incident to her family. In order to spend some time, they boarded a KSRTC bus and went to Thrissur. They had tea at Thrissur and then came back to Ernakulam. Then, the survivor went along with accused Nos. 1 and 2 to the Ernakulam Railway Station to purchase a ticket for the 1st accused to travel to Bangalore. The survivor then told the 2nd accused to drop her at Manasseri. As she did not want to go to her friend’s house, she took a bus and went back home. She reached home at 9:00 a.m. and both her parents were there. However, she did not mention the incident to them. On the next day, i.e. on 15.10.2018, she called Childline and a lady came to meet her. She divulged the entire incident to the said lady. Her parents were at home when she told about the incident to the lady. The lady from the Childline informed the police. The police then came to her residence and gave information based on which Ext.P1 statement was furnished. She was then taken for medical examination and then to the learned Magistrate. Before the learned Magistrate, she reiterated that when she woke up, she felt severe pain on her genital area and lower abdomen. According to her, she realized that she was raped by the accused. She pointed out the place from where she was picked up by the 2nd accused and also the location at Fort Kochi Beach where she was taken. She stated that she had worn Jeans and a Shirt at the time of meeting the accused and the same were handed over to the police. In cross-examination, she stated that she got acquainted with the 1st accused as he was regular at the Church. According to her, it was at 8.30 p.m. that she received a call on her mother’s phone. She told her father that she was going to the house of her friend and left the house. She got acquainted with A2 through A1. According to her, 13.10.2018 was the second day of her menstrual cycle. She stated that when she regained consciousness, she was on a bed in a room which was not having an attached bathroom. There was no other furniture in the room. She got acquainted with A2 through A1. According to her, 13.10.2018 was the second day of her menstrual cycle. She stated that when she regained consciousness, she was on a bed in a room which was not having an attached bathroom. There was no other furniture in the room. The room appeared to be one in a flat. It was brought out that she had not stated either to the police or to Magistrate that she was subjected to rape. All that she had mentioned was that she had pain in the lower abdomen. She stated that she had not been taken by the police to the room where she gained her consciousness. It was after getting out of the said room, that she went with the accused to have food. Her mother had gone to her aunt’s house on the evening of the 13th and before she had received the phone call from the 1st accused. She stated that the 1st accused had called her on the previous day as well in the same phone. On the previous day, when she had received the phone, she was at the Raveendra Hospital at Thoppumpady with her mother to get treatment for her fever. She denied the suggestion in cross-examination that the accused had not called her on her mother’s phone on 12.10.2018 or thereafter. She stated that she had called Childline at noon on 15.10.2018 and furnished all the details to the person, who had come from Childline. She added that the lady had taken down in writing, all that she had stated. She went on to add that the police also had come on the same day, along with the Officer from the Childline. She stated that she was very scared when she woke up and she wanted some or the other escape from the clutches of the accused. She stated that she had walked down the steps when getting out of the room in the flat. According to her, she did not mention to the police that there were minor injuries on her body, since the police did not ask them. 17. The mother of PW1 was examined as PW2. She stated that she is a tailor. It was Lathika (PW24) from Childline, who had told about the incident involving her daughter. It was only thereafter that her daughter divulged to her about what had happened. 17. The mother of PW1 was examined as PW2. She stated that she is a tailor. It was Lathika (PW24) from Childline, who had told about the incident involving her daughter. It was only thereafter that her daughter divulged to her about what had happened. She stated that she, along with her elder daughter, went to her mother’s house on 13.10.2018 and came back only late in the evening. When she reached home, her husband alone was at home. When she enquired about PW1, he informed her that she had gone to her friend’s house. This information was given at about 10:00 p.m. PW1 had her mobile phone with her. They waited for some time for PW1 to return back. However, her daughter came back only on the next day at 9:00 a.m. When the daughter arrived, she noticed that her daughter was having difficulty walking. After some time, her daughter came out after taking a bath. She did not say anything to her parents, and they did not engage in any conversation. On the next day, i.e. on 15.10.2018, PW1 called Childline and PW24 came to her house. It was then that PW1 told her about the ordeal that she suffered at the hands of the accused. She told about the manner in which she was taken around, and that she was subjected to rape. PW2 also was with PW1, when such a statement was made. On the next day, Women Police Constables came to her residence and recorded the statement of PW1. The clothes worn by the survivor at the time of occurrence were handed over to the police. In cross-examination, she stated that since PW1 was missing, she had called two of her friends to enquire about her whereabouts. However, they stated that they had not seen PW1. Though when her daughter said that she was not well, she was not taken to the hospital. She also stated that she had not informed the police when her daughter went missing. 18. The father of PW1 was examined as PW3. He stated that he is a welder by profession and comes home at 6:30 p.m. On 13.10.2018, his wife was not at home. At about 9:00 p.m. her daughter received a call and she went out briefly and returned back. Again she received another call. 18. The father of PW1 was examined as PW3. He stated that he is a welder by profession and comes home at 6:30 p.m. On 13.10.2018, his wife was not at home. At about 9:00 p.m. her daughter received a call and she went out briefly and returned back. Again she received another call. She then told him that she wanted to meet her friend and assured him that she would return back immediately. When his wife came, he informed that PW1 had gone out. They waited for some time. Then they called PW1 on her mobile phone. However, the same was not answered. He noticed that the phone was switched off by about 12 midnight. Thereafter, he went around Fort Kochi and Thoppumpady in his scooter, to trace out his daughter. He continued his search till 3:00 a.m. on 14.10.2018. However, he did not choose to inform the police, as he was under the impression that his daughter would be with one of her friends. When his daughter came back the next day morning, he noticed that she was having some difficulty. She went inside her room and locked herself in. Though he enquired with his daughter, she did not respond. On 15.10.2018, his daughter called PW24. On the next day, the police came and recorded her statement. According to him, his daughter was taken to Fort Kochi, forced her to drink and smoke, and she was raped in an apartment. He stated that this information was passed onto him by his wife. 19. PW4 is the attestor to Ext.P2 Mahazar, prepared in respect of the scene from where PW1 was picked up by A2, on his bike. PW5 is the attestor to the Mahazar prepared at the 2nd floor of Jewel Arcade, Ernakulam, the place pointed out by the 3rd accused as the place where PW1 was allegedly subjected to sexual abuse. PW7 stated that he had worked as a watcher in a building situated behind Alukkas Jewellery for a period of 2½ months. According to him, he used to walk around till 10:00 p.m. and after that will go to the button floor and sit on a chair. He stated that he has only hearsay knowledge about the incident. He stated that he would down the shutters to prevent any person from going to the upper floors. According to him, he used to walk around till 10:00 p.m. and after that will go to the button floor and sit on a chair. He stated that he has only hearsay knowledge about the incident. He stated that he would down the shutters to prevent any person from going to the upper floors. He also stated that even if the shutters are down one can climb up the stairs. PW8 is the Assistant Surgeon, Government Maharajas Hospital, Karuvelippady. He stated that he examined A2, A3, and A4 and issued the potency certificates which were marked as Exts.P5 to P7. According to him none of them were found to be incapable of performing the sexual acts. 20. PW9 is the Gynaecologist attached to the Women and Children Hospital, Mattancherry. She examined the survivor on 16.10.2018 at 5.35 pm. On examination, she found that the hymen of the survivor was torn. She found a partially healed tear at the 7 o’clock /11 o’clock position. There was a minor healed abrasion with a brownish scab in the inner aspect of the junction of both labia minora and mild tenderness on both breasts. No other injuries were noted. She also stated that the vagina admits two fingers. As she was on her menstruation, the doctor did not collect any vagina smears or swabs. She stated that she issued Ext.P8 certificate. In Ext.P8, a brief history of what was stated by the survivor was recorded. In her opinion, she stated that there is evidence of vaginal penetration. She also stated that the injuries found could be caused as alleged. In cross-examination, she stated that she had not noted the age of the hymen tear. She added that a healthy girl aged 16 years who engages in cycling, dancing, or sports activities may result in the tearing of her hymen. Abrasion on labia minora could be caused due to finger nailing associated with itching. To a question whether sexual intercourse on a day will not cause two-finger admission of the vagina, the doctor responded that if multiple persons are involved, it is possible. 21. PW10 is another attestor to Ext.P3 Mahazar prepared at Jewel Arcade. PW11 is the Chief Medical Officer, Government Maharajas Hospital, Karuvelippady, and he stated that he examined A1 and issued Ext.P9 potency certificate, noting that there was nothing to show that he was incapable of performing the sexual act. 21. PW10 is another attestor to Ext.P3 Mahazar prepared at Jewel Arcade. PW11 is the Chief Medical Officer, Government Maharajas Hospital, Karuvelippady, and he stated that he examined A1 and issued Ext.P9 potency certificate, noting that there was nothing to show that he was incapable of performing the sexual act. PW12 is the Scientific Officer, DCRB, who stated that he examined the portion of the 2nd floor at Jewel Arcade Ernakulam and collected trace evidence. However, he was not able to find any trace evidence from the spot. PW13 is the Revenue Superintendent, Cochin Corporation, and through her Ext.P10 certificate, showing the ownership details of apartment Nos. 8C and 8D of Jewel Arcade was marked. PW14 is the Village Officer, Thoppumpady, who prepared the plan of the area at Odampilly Lane, from where the survivor was picked up by the 2nd accused. PW15 is the Village Officer, Fort Kochi, who prepared Ext.P12 site plan near the breakwater area. PW16 is the Village Officer, Ernakulam, who prepared the site sketch of the 2nd floor area at Jewel Arcade. PW17 is the Chemical Examiner, who tested the presence of pubic hair, vaginal smear, semen, and spermatozoa in the material objects and Ext.P14 certificate was issued. He was not able to detect any bodily fluids in the objects. PW18 is the Registrar, Births and Deaths, Kochi Corporation. Through him, the birth certificate of the survivor was marked as Ext.15. The date of birth noted in the certificate was 22.04.2002. PW19 is the Judicial Magistrate of the I Class, Mattancherry, who recorded the 164 statement of the survivor. PW20 is the Woman Police Constable, Thoppumpady, who recorded Ext.P1 statement of the survivor. 22. PW21 was the Senior Civil Police Officer, Thoppumpady Police Station, as on 16.10.2018. He stated that he was also present when Ext.P2 Mahazar was prepared. The clothes of the survivor which were handed over by her mother were seized as per Ext.P17 mahazar. As pointed out by the survivor, the location near the breakwater Fort Kochi was located and he was an attestor to Ext.P18 Mahazar. In the same manner, he was also present when the 3rd accused had pointed out the corridor of Jewel Arcade, Ernakulam where the survivor was allegedly subjected to sexual abuse. As pointed out by the survivor, the location near the breakwater Fort Kochi was located and he was an attestor to Ext.P18 Mahazar. In the same manner, he was also present when the 3rd accused had pointed out the corridor of Jewel Arcade, Ernakulam where the survivor was allegedly subjected to sexual abuse. The motorcycle used by the 3rd accused was handed over by his wife and the same was seized as per Ext.P19 mahazar of which he was an attestor. As pointed out by the 2nd accused, Duke Bike was seized as per Ext.P4 mahazar and he was an attestor to the same. PW22 was the Sub Inspector of Police, Thoppumpady Police Station who registered Ext.P20 FIR on the strength of Ext.P1 statement given by the survivor. He stated that on the same day, A2 to A4 were taken to the Police Station. In cross-examination, he denied that on 15.10.2018 itself, the statement of the survivor was recorded. He also denied that Ext.P1 statement was prepared after much deliberation. It was brought out to him that the survivor had stated that she regained consciousness and found herself lying on a bed in a room. 23. PW23 is the Investigating Officer. We have already narrated the sequence of investigation conducted by him. He stated that he had taken steps to ascertain the tower location and call details of the mobile phone of the accused and submitted a report to the Cyber Cell. In cross-examination, to a suggestive question that no sexual assault was committed near the breakwater at Fort Kochi, he denied the same. He stated that he had gone to Jewel Arcade for the first time on 24.10.2018. When he was asked as to how he had identified that the sexual abuse at Jewel Arcade was carried out in the corridor of the 2nd floor of the building, he answered that it was based on witness statements and the confessional statement of the accused. When a pointed question was put as to which witness had stated so, he confirmed that no such statement was given by any other witnesses. When he was asked as to whether the room mentioned by PW1 in the First Information Statement could be located, he answered that to his knowledge, there was no such room. When a pointed question was put as to which witness had stated so, he confirmed that no such statement was given by any other witnesses. When he was asked as to whether the room mentioned by PW1 in the First Information Statement could be located, he answered that to his knowledge, there was no such room. According to him, she was unconscious, she might have wrongly stated that she was lying in a bed inside a room. He added that as the location was unknown, the survivor was not able to correctly identify the area. According to him, the incident happened on the floor of the corridor portion of the building. He concluded that A3 and A4 were also present as the survivor had mentioned their names in the initial statement itself. He denied that an earlier statement was recorded on 15.10.2018 wherein the survivor had not mentioned the presence of A3 and A4. 24. PW24 is a team member of the Ernakulam Childline. She stated that on 15.10.2018, at about 4.30 p.m. the survivor in the instant case called Childline over the phone. She stated that she was subjected to sexual abuse by the accused Nos. 1 to 3. On the next day, at about 10.30 a.m. she reached the house of the survivor and did counselling. The survivor told her that A1 called her on her mother’s phone on 12.10.2018 and he expressed his desire to meet her. On 12.10.2018, at 9:00 p.m. the 2nd accused took her on a bike to Fort Kochi. She stated to have met A1 to A3 and their friend. The friend with whom she had no acquaintance went to purchase beer and later came back. She was made to drink and she was also forced to smoke a cigarette. She fell unconscious and when she woke up, she was found lying in the corridor of a flat without any clothes. She also said that she was taken to Thrissur by accused Nos. 1 and 2. A sum of Rs.20/- was given to her to get back home. She is alleged to have stated that she got back home at 10.00 a.m. She stated that the survivor had told her that she was subjected to rape. After hearing the version of the survivor, she contacted the police and in her presence, the statement of the survivor was recorded. She is alleged to have stated that she got back home at 10.00 a.m. She stated that the survivor had told her that she was subjected to rape. After hearing the version of the survivor, she contacted the police and in her presence, the statement of the survivor was recorded. She added that the mother of the survivor was with them when the statement was recorded. In cross-examination, she stated that she did not record the statement given by the survivor when she first met her. She stated that she had occasion to go through the police records before entering the box and what she stated in the chief examination was stated by her on its basis. It was brought out through her that in the statement furnished by her to the police, she had not stated the details of what the survivor had stated to her. She stated that she did not state to the police that the accused Nos. 2 to 4 forced her to consume beer. She stated that she did not have an occasion to talk to the survivor on the 15th. According to her, one of the staff had interacted with the survivor on the 15th and it was not her. When she was asked about the delay of about 18 hours in contacting the child after receiving the information about the sexual abuse, she stated that other staff were engaged and therefore, they were in a position to go only on the next day of proceeding the information. She denied that on 15.10.2018 the police had recorded the statement of the survivor. 25. The summary of the evidence tendered by the witness has already been extracted. The question before us is whether the solitary evidence tendered by PW1 coupled with the medical evidence and the evidence of PW24 are sufficient to record conviction against the appellants.. Before we address the issues, it would be appropriate to remember and reiterate the law laid down by the Apex Court as well as this Court as regards the weight to be attached to the testimony of the survivor in matters involving sexual offences, particularly in a case of this nature, where the entire case of the prosecution revolves around the evidence tendered by the survivor. A very characteristic feature of this case is that the specific case of the survivor is that she was unconscious when the alleged rape was committed. However, when she woke up, she found that she was nude and the accused were standing around her. She also felt pain on her lower abdomen and other parts of her body. 26. In Nirmal Premkumar (supra), the Apex Court while elucidating the principles that are to be borne in mind while appreciating oral testimony, it was observed as under in paragraph No. 11 of the judgment “11. Law is well settled that generally speaking, oral testimony may be classified into three categories: (i) wholly reliable; (ii) wholly unreliable; (iii) neither wholly reliable nor wholly unreliable. The first two category of cases may not pose serious difficulty for the Court in arriving at its conclusions. However, in the third category of cases, the Court has to be circumspect and look for corroboration of any material particulars by reliable testimony, direct or circumstantial, as a requirement of the rule of prudence.” 27. In State of H.P. v. Raghubir Singh, (1993) 2 SCC 622 the Apex Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. 28. In Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21 under what circumstances can a witness be categorized as a sterling witness, the Apex Court had held as under: 22. In our considered opinion, the “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged. 29. In State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 the Apex Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person’s lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. In State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 the Apex Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person’s lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under in paragraph No. 16: “16. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.” 30. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.” 30. In State of Punjab v. Gurmit Singh, 1996 (2) SCC 384 the Apex Court held that in cases involving sexual harassment, molestation etc., the court is duty-bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court went on to observe as under in paragraph Nos. 8 & 21: “8...................The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case...................Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury.............. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. xxx xxx xxx 21...................The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.” 31. In State of Orissa v. Thakara Besra, (2002) 9 SCC 86 the Apex Court held that rape is not mere physical assault, rather it often destroys the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case, and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. 32. In Krishan Kumar Malik (supra), the Apex Court emphasized the duty of the court to differentiate between genuine cases from frivolous and concocted ones. 32. In Krishan Kumar Malik (supra), the Apex Court emphasized the duty of the court to differentiate between genuine cases from frivolous and concocted ones. It was held that the role of courts in such cases is to see whether the evidence available before the court is enough and cogent to prove the guilt of the accused. It was held as follows in paragraphs Nos. 31 and 32 of the judgment: 31. No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, which have already been projected hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the appellant guilty of the said offences. 32. Indeed there are several significant variations in material facts in her Section 164 statement, Section 161 statement (Cr.P.C.), FIR and deposition in court. Thus, it was necessary to get her evidence corroborated independently, which they could have done either by examination of Ritu, her sister or Bimla Devi, who were present in the house at the time of her alleged abduction. The record shows that Bimla Devi though cited as a witness was not examined and later given up by the public prosecutor on the ground that she has been won over by the appellant. 33. After evaluating all the past precedents, the Apex Court in Nirmal Premkumar (supra) held that in cases where witnesses are neither wholly reliable nor wholly unreliable, the Court should strive to find out the true genesis of the incident. The Court can rely on the victim as a “sterling witness” without further corroboration, but the quality and credibility must be exceptionally high. The statement of the prosecutrix ought to be consistent from the beginning to the end (minor inconsistencies excepted), from the initial statement to the oral testimony, without creating any doubt qua the prosecution’s case. While a victim’s testimony is usually enough for sexual offence cases, an unreliable or insufficient account from the prosecutrix, marked by identified flaws and gaps, could make it difficult for a conviction to be recorded. (Emphasis supplied) 34. While a victim’s testimony is usually enough for sexual offence cases, an unreliable or insufficient account from the prosecutrix, marked by identified flaws and gaps, could make it difficult for a conviction to be recorded. (Emphasis supplied) 34. Before we evaluate the evidence threadbare, we would like to point out that the contention of the accused was of total denial. A reading of the cross-examination would reveal that their contention is that they were not even present at the scene of crime. They disputed that allegation in the court charge, that the survivor was subjected to penetrative sexual abuse by the accused in or at the breakwater at Fort Kochi, which is the first place of occurrence, or at Jewel Arcade, Ernakulam. However, the learned Sessions Judge relied on the concept of “special knowledge” as outlined in Section 106 of the Indian Evidence Act, which placed the burden of proof on the person to adduce evidence to substantiate facts, especially within their knowledge. The Court went on to hold that the accused having failed to offer any explanation about what had transpired between the arrival of the survivor at the beach, around 9:00 p.m. on 13.10.2018, and had departure to her home in the morning of 14.10.2018, the same will rope in the accused with the criminal liability for the acts alleged by the prosecution. It needs no reiteration, and as held by the Apex Court in Vikramjit Singh @ Vicky v. State of Punjab, 2006 (12) SCC 306 Section 106 of the Indian Evidence Act, will not relieve the prosecution to prove its case beyond all reasonable doubt. It is only when the prosecution case has been proved that the burden in regard to such facts which was within the “special knowledge” of the accused, can be shifted for explaining the same. In Shambu Nath Mehra v. State of Ajmer, AIR 1956 SC 404 the Apex Court speaking through Vivian Bose, J. had laid down the legal principle underlying the shifting of the burden of proof under Section 106 of the Evidence Act thus: “9. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are ‘especially’ within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word ‘especially’ stresses that. It means facts that are pre-eminently or exceptionally within his knowledge.” The initial burden would always be on the prosecution and Section 106 of the Indian Evidence Act will not and is not intended to relieve the prosecution of the said duty. The said provision has been incorporated to meet certain exceptional cases in which it would either be impossible or disproportionately difficult for the prosecution to establish facts which are specially within the knowledge of the accused, and which he or she could prove without difficulty or inconvenience. 35. It would also be vital to remind oneself of the observations made by the Apex Court in M.G. Agarwal v. State of Maharashtra, 1962 SCC Online SC 22 wherein, a Larger Bench of the Apex Court had occasion to elucidate the principles with regard to distinguishing between facts, which may be called primary or basic on the one hand, and the inference of the facts to be drawn from them on the other. It was held, though in the context of appreciation of evidence in cases resting on circumstantial evidence, that it is necessary to distinguish between facts which may be called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to the proof of basic or primary facts, the court has to judge the evidence in the ordinary way and in the appreciation of evidence in respect of the proof of these basic or primary facts there is no scope for the application of the doctrine of benefit of doubt. The court considers the evidence and decides whether that evidence proves a particular fact or not. The court considers the evidence and decides whether that evidence proves a particular fact or not. When it is held that a certain fact is proved, the question arises whether that fact leads to the inference of guilt of the accused person or not, and in dealing with this aspect of the problem, the doctrine of benefit of doubt would apply and an inference of guilt can be drawn only if the proved fact is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. 36. The learned Sessions Judge has also held that the presumption under Section 29 of the POCSO Act, can be fastened on the accused. Of course, under Section 29 of the POCSO Act, where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7, and Section 9 of this Act, the Special Court is bound to presume that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved. The impact of Section 29 of the Act is that the statutory presumption would come into play when a person is prosecuted for committing offence under Sections 5 and 9 of the Act and a reverse burden is imposed on the accused to prove the contrary. The words “is prosecuted” in the aforesaid provision does not mean that the prosecution has no role to play in establishing and/or probablising primary facts constituting the offence. If that was the case, then the prosecution would be absolved of the responsibility of leading any evidence whatsoever and the Court would be required to call upon the accused to disprove a case without the prosecution laying the firm contours thereof by leading reliable and admissible evidence. Such an interpretation not only leads to absurdity but renders the aforesaid provision constitutionally suspect. A proper interpretation of the said provision is that in a case where the person is prosecuted under Sections 3, 5, 7, and Section 9 of this Act, the prosecution is absolved of the responsibility of proving its case beyond reasonable doubt. On the contrary, it is only required to lead evidence to establish the ingredients of the offence on a preponderance of probability. On the contrary, it is only required to lead evidence to establish the ingredients of the offence on a preponderance of probability. Upon laying the foundation of its case by leading cogent and reliable evidence meaning thereby evidence which is not inconsistent not beset with inherent probabilities, the onus shifts upon the accused to prove the contrary. [See: Subrata Biswas & Anr. v. State, 2019 SCC Online Kolkata 1815]. 37. In Justin v. Union of India, Represented by the Secretary, Ministry of Law and Justice and Ors. 2020 SCC Online Ker 4956, an accused facing prosecution under the POCSO Act, approached this Court, seeking to quash Sections 29 & 30 of the Act as unconstitutional. A learned Single Judge, after considering all the earlier precedents and the relevant provisions held as under in Paragraph Nos. 78 to 80 of the judgment: “78. In Foundational facts in a POCSO case include the proof that the victim is a child, that alleged incident has taken place, that the accused has committed the offence and whenever physical injury is caused, to establish it with supporting medical evidence. If the foundational facts of the prosecution case is laid by the prosecution by leading legally admissible evidence, the duty of the accused is to rebut it, by establishing from the evidence on record that he has not committed the offence. This can be achieved by eliciting patent absurdities or inherent infirmities in the version of prosecution or in the oral testimony of witnesses or the existence of enmity between the accused and victim or bring out the peculiar features of the particular case that a man of ordinary prudence would most probably draw an inference of innocence in his favour, or bring out material contradictions and omissions in the evidence of witnesses, or to establish that the victim and witnesses are unreliable or that there is considerable and unexplained delay in lodging the complaint or that the victim is not a child. Accused may reach that end by discrediting and demolishing prosecution witnesses by effective cross examination. Only if he is not fully able to do so, he needs only to rebut the presumption by leading defence evidence. Still, whether to offer himself as a witness is the choice of the accused. Accused may reach that end by discrediting and demolishing prosecution witnesses by effective cross examination. Only if he is not fully able to do so, he needs only to rebut the presumption by leading defence evidence. Still, whether to offer himself as a witness is the choice of the accused. Fundamentally, the process of adducing evidence in a POCSO case does not substantially differ from any other criminal trial; except that in a trial under the POCSO Act, the prosecution is additionally armed with the presumptions and the corresponding obligation on the accused to rebut the presumption. 79. In POCSO cases, considering the gravity of sentence and the stringency of the provisions, an onerous duty is cast on the trial court to ensure a more careful scrutiny of evidence, especially, when the evidence let in is the nature of oral testimony of the victim alone and not corroborated by any other evidence-oral, documentary or medical. 80. Legally, the duty of the accused to rebut the presumption arises only after the prosecution has established the foundational facts of the offence alleged against the accused. The yardstick for evaluating the rebuttable evidence is limited to the sale of preponderance of probability. Once the burden to rebut the presumption is discharged by the accused through effective cross examination or by adducing defence evidence or by the accused himself tendering oral evidence, what remains is the appreciation of the evidence let in. Though, it may appear that in the light of presumptions, the burden of proof oscillate between the prosecution and the accused, depending on the quality of evidence let in, in practice the process of adducing evidence in a POCSO case does not substantially differ from any other criminal trial. Once the recording of prosecution evidence starts, the cross examination of the witnesses will have to be undertaken by the accused keeping in mind the duty of the accused to demolish the prosecution case by an effective cross-examination and additionally to elicit facts to rebut the statutory presumptions that may arise from the evidence of prosecution witnesses. Practically, the duty of prosecution to establish the foundational facts and the duty of accused to rebut presumptions arise, with the commencement of trial, progresses forward along with the trial and establishment of one, extinguishes the other. Practically, the duty of prosecution to establish the foundational facts and the duty of accused to rebut presumptions arise, with the commencement of trial, progresses forward along with the trial and establishment of one, extinguishes the other. To that extent, the presumptions and the duty to rebut presumptions are co-extensive.” The observations made in Justin (Supra), were taken note of by the Apex Court in Pappu v. State of U.P. (2022) 10 SCC 321 . 38. Guided by the law as aforesaid and in our pursuit to address the issues raised, and having analyzed the evidence threadbare in all its facets-including omissions, inconsistencies, suppression, and probabilities in the oral evidence in the light of the medical evidence and other circumstances-we are of the view that the circumstances brought out cast serious doubt on the veracity of the prosecution’s version. We shall narrate the reasons as to why we are persuaded to hold so: (A) With regard to the scene of crime: (a) The case of the prosecution is that the survivor was taken by the accused to two places, spread about 15 km apart in bikes, was administered beer and was made to smoke a cigarette which purportedly contained some narcotic and then was subjected to penetrative sexual abuse. She was initially taken to the Fort Kochi Beach walkway near the breakwater pillar numbered as 2. The learned Sessions Judge goes on to hold that the overall evidence suggested that while she was in a trance, all the accused raped her against a concrete barrier. The prosecution has attempted to substantiate the same by relying on circumstances rather than the evidence of the survivor as she was unconscious. After subjecting her to sexual abuse, the accused Nos. 1 to 4 are alleged to have traveled on two motorbikes and transported the survivor, while she was in an unconscious state, and took her up two floors of a multi-storeyed building by name ‘Jewel Arcade’ an apartment building, and again subjected her to repeated sexual abuse, after laying her down on the floor of the corridor separating two office rooms. (b) It needs to be borne in mind at this juncture that insofar as the first place of occurrence is concerned, no evidence was collected to substantiate that the survivor was subjected to any sort of sexual abuse, by laying her down on a concrete barrier. (b) It needs to be borne in mind at this juncture that insofar as the first place of occurrence is concerned, no evidence was collected to substantiate that the survivor was subjected to any sort of sexual abuse, by laying her down on a concrete barrier. No injuries whatsoever, let alone any abrasions or contusions were noted on the body of the survivor, to corroborate that such an act was committed in an open place. From Ext.P17 Mahazar, it would be evident that the clothes worn by the survivor were seized at 11:30 a.m. on 17.10.2018. The clothes seized included a shirt, jeans, panties, and a brassiere. While examined as PW1, the survivor had stated that she was on her periods and the date of assault was the 2nd day of her menstrual cycle. Ext.P8 Medical Certificate issued by PW9, the Gynaecologist, who examined PW1, reveals that the survivor was on the 2nd day of her menstrual cycle, with bleeding having commenced around the evening of 12.10.2018. If the accused had removed the clothes and had subjected her to any sort of sexual abuse, as she was in a trance, necessarily, there would have been the presence of menstrual fluid on her clothes. If the accused had ejaculated and had forced the survivor to wear the clothes thereafter, necessarily, some amount of spermatozoa mixed with menstrual blood would have been found in her panties or jeans. There is no case for the survivor that she managed to clean herself after the offensive act committed near the breakwater. Being unconscious, at any rate, she could not have cleaned herself. Furthermore, no sort of investigation was conducted at the scene of the crime to ascertain as to whether such an act could have been perpetrated at about 10:00 p.m. on 13.10.2018 and also as to whether there were body fluids in or around the scene of crime. The prosecution in order to justify that the accused proceeded to abuse the survivor despite being on her periods, had argued that the accused may have used condoms to commit the heinous act. However, no evidence was adduced to prove that condoms were purchased or that the same was used. The clothes seized as per Ext.P17 Mahazar, were forwarded to the Regional Chemical Examiner’s Lab, and Ext.P22 report was obtained. However, no evidence was adduced to prove that condoms were purchased or that the same was used. The clothes seized as per Ext.P17 Mahazar, were forwarded to the Regional Chemical Examiner’s Lab, and Ext.P22 report was obtained. The said report reveals that the clothes which include undergarments did not reveal the presence of semen or spermatozoa, or for that matter any bodily fluid. This we feel casts a very serious doubt on the veracity of the case set up by the prosecution as regards the first scene of crime. The investigating officer has also not attempted to seize the clothes that were worn by the accused. The same would also have presented valuable evidence. (c) The specific case as per the charge is that the survivor was then transported to Jewel Arcade, a multi-storeyed building situated in the heart of Ernakulam Town. It needs to be borne in mind that the case of the survivor is that when she woke up at 2:00 a.m., she found herself lying on a bed, nude and surrounded by the accused, in a room resembling a room in a flat. Her case is that she stood up, wore her clothes, and left with the accused to have food. She also stated there was no furniture in the said room and no bathroom nearby. In her evidence, she stated that she was not taken by the investigating officer to the said room, to identify the place. The investigating officer, on the other hand, to a pointed question, stated that he had fixed the 2nd scene as the corridor on the 2nd floor of Jewel Arcade as the place of occurrence on the basis of the confessional statement of the 3rd accused. When he was confronted with the statement of the survivor, that it was a room in a flat/apartment, he responded by saying that the survivor was under some delusion, as she had become conscious only then. According to him, the statement of the survivor that when she became conscious, she was lying on a bed is not correct. (d) Ext.P3 is the Scene Mahazar, prepared after inspecting the scene of crime. Ext.P3 would reveal that the scene of the crime is a narrow corridor on the 2nd floor of an eight-storeyed apartment building. There is the office of a lawyer on one side, and that of a Chartered Accountant on the other side. (d) Ext.P3 is the Scene Mahazar, prepared after inspecting the scene of crime. Ext.P3 would reveal that the scene of the crime is a narrow corridor on the 2nd floor of an eight-storeyed apartment building. There is the office of a lawyer on one side, and that of a Chartered Accountant on the other side. A shutter has been put up to prevent easy access to the building. PW7 is the Security Guard at the Jewel Arcade, during the relevant time. According to him, he did not notice the entry of any strangers into the building. There are numerous other buildings in the near vicinity which include apartments, hotels, jewellery shops etc, as the said building is situated in the heart of Ernakulam. Though the investigating officer had obtained the services of Forensic Experts to obtain trace evidence, they were not able to collect any trace evidence from the tiled floor. (e) We have serious doubts regarding the manner in which PW23 fixed the location of the second crime scene. There is no explanation as to why the accused would choose the corridor on the 2nd floor of an eight-storeyed apartment building situated in the heart of Ernakulam, surrounded by hotels, jewelry shops, apartment buildings, and offices, as the setting for carrying out such a brutal act of rape. It is also unclear whether any attempt was made to obtain CCTV footage from nearby premises. If the survivor was indeed unconscious, it raises critical questions about how she was transported on a bike approximately 15 kms and then carried to the second floor of the building without drawing attention from security guards or individuals in nearby buildings. This scenario creates substantial suspicion. Even if one disregards these factors, if four persons allegedly subjected a menstruating girl to such an ordeal on a paved floor in a corridor, one would reasonably expect visible traces on the floor and corresponding injuries on her body. The presence of menstrual fluid, and whether the scene was subsequently cleaned, are matters of utmost relevance. Additionally, the survivor stated that when she became conscious, she just put on her dress and went with the accused to have food in a restaurant. She admitted that there was no bathroom in the flat. The presence of menstrual fluid, and whether the scene was subsequently cleaned, are matters of utmost relevance. Additionally, the survivor stated that when she became conscious, she just put on her dress and went with the accused to have food in a restaurant. She admitted that there was no bathroom in the flat. If that be the case, it would be nearly impossible not to detect the presence of bodily fluids/menstrual blood/semen on her undergarments, jeans, and other clothing, which were seized as per Ext.P17 Mahazar and traces in the undergarments of the accused. (B) Suppression of call data records and tower dump details: As stated earlier, the case of the survivor is that she was initially taken from her house at Thoppumpady to Fort Kochi Beach, a distance of about 5 Kms. As per the charge, she was then taken to Jewel Arcade. After 2:00 a.m. in the morning, the survivor was taken to a restaurant, where she had fried rice. The mobile phone of her mother was with her during this time, and PW3 had called her when she did not return home. After having food, the accused Nos. 1 and 2 along with the survivor went back to Thoppumpady, and when they attempted to drop her at her home, she is alleged to have threatened to reveal the assault to her family. Then the accused Nos. 1 and 2 changed their mind and decided to take the survivor to Thrissur. Then went to the KSRTC Bus Stand and took a KSRTC Bus and traveled to Thrissur, a place more than 70 kms away from Ernakulam. After having tea at Thrissur, they returned back in a bus and then went to the Ernakulam Railway Station to purchase a ticket for the 1st accused to travel to Bangalore. It was thereafter that the accused Nos. 1 and 2 decided to drop off the survivor at Manasseri, from where she made her way home and reached her residence at 9:00 a.m. on 14.10.2018. While tendering evidence in Court, the investigating officer stated that he had obtained the details of the mobile phone in the possession of the accused and based on which a report was submitted to the Cyber Cell to obtain tower location and call data records. However, it is unclear whether the details were obtained. While tendering evidence in Court, the investigating officer stated that he had obtained the details of the mobile phone in the possession of the accused and based on which a report was submitted to the Cyber Cell to obtain tower location and call data records. However, it is unclear whether the details were obtained. For reasons best known to the prosecuting agency, the Tower Dump Details and Call Data Records were neither produced before Court nor proved in evidence. If the Call Data Records were obtained, it would have corroborated the case of the survivor that the 1st accused had called the survivor on her mother’s phone on 12.10.2018 and 13.10.2018. It would have strengthened the case of PW3, that he had called his daughter when she had not returned back. The tower dump details, if obtained, would have clearly revealed that the survivor was with the accused in all the above places and that they had gone to Fort Kochi, Jewel Arcade, and then to Thrissur and finally back to her home. The learned Sessions Judge, however, rejected the contention of the defendants, by holding that the failure to produce the records cannot be regarded as a fatal flaw in the prosecution case and that such flaws can be ignored by relying on the evidence of the survivor. We find serious merit in the submissions of the learned counsel appearing for the appellants that the records, if produced, would have conflicted with the case of the prosecution and it was for the said reason, that the same was kept away from the gaze of the Court. As held in Tomaso Bruno and Another v. State of U.P. 2015 SCC Online SC 52, the failure of the prosecution to produce the evidence can only be taken to mean that if produced, it would have been unfavourable to the case set up by them. We are not in a position to agree with the finding of the Court that in the facts and circumstances, it was the duty of the accused to substantiate that they were not with the survivor and not for the prosecution to let in any evidence to corroborate the claim of the survivor. (C) Medical Evidence: PW9, the Gynaecologist attached to the Women and Children Hospital, Mattancherry, examined the survivor on 16.10.2018. She noted a partially healed tear of the hymen. (C) Medical Evidence: PW9, the Gynaecologist attached to the Women and Children Hospital, Mattancherry, examined the survivor on 16.10.2018. She noted a partially healed tear of the hymen. There was also a minor healed abrasion with a brownish scab in the inner aspect of both labia minora and mild tenderness on both breasts. No other injuries were noted on the body. Though the two-finger test is a disapproved method, the said test was conducted and the doctor noted that the vagina admits two fingers. As the survivor was in menstruation, the Doctor did not collect any vaginal smears or swabs. Ext.P8 report reveals that the opinion given by the Doctor is that there is evidence of vaginal penetration. The Doctor has scored off the words “recent/past”, which can only mean that the finding was that there was vaginal penetration but without a specified time frame. Insofar as the hymenal tear is concerned, she stated in cross-examination that she has not noted the age of the hymenal tear. She also stated that a girl aged 16 years, who engages in cycling, dancing, or sports activities, may sustain tear of her hymen. One cannot fault the doctor for not taking smears particularly when the survivor was on her periods. However, the same cannot be said about the undergarments and jeans worn by the survivor. Non-detection of bodily fluids would throw serious doubt on the case of the prosecution. The evidence adduced by the Doctor would not strengthen or corroborate the prosecution version that the survivor was subjected to sexual abuse by four young men, by the side of a concrete barrier and on a tile floor, on multiple occasions. The lack of injuries on any other part of the body also throws some doubt on the case of the prosecution. We have no doubt in our mind that the medical evidence let in by the prosecution does not conclusively prove that the survivor was subjected to gang rape. 39. We are unable to accept the contention of the learned Public Prosecutor that even if this Court finds that the investigation is defective, it cannot lead to the acquittal of the accused. When faced with similar submissions, the Apex Court in Surajit Sarkar v. State of West Bengal, (2013) 2 SCC 146 opined as under: 49. 39. We are unable to accept the contention of the learned Public Prosecutor that even if this Court finds that the investigation is defective, it cannot lead to the acquittal of the accused. When faced with similar submissions, the Apex Court in Surajit Sarkar v. State of West Bengal, (2013) 2 SCC 146 opined as under: 49. We are not prepared to accept as a broad proposition of law that in no case can defective or shoddy investigations lead to an acquittal. It would eventually depend on the defects pointed out. If the investigation results in the real culprit of an offence not being identified, then acquittal of the accused must follow. It would not be permissible to ignore the defects in an investigation and hold an innocent person guilty of an offence which he has not committed. The investigation must be precise and focused and must lead to the inevitable conclusion that the accused has committed the crime. If the investigating officer leaves glaring loopholes in the investigation, the defence would be fully entitled to exploit the lacunae. In such a situation, it would not be correct for the prosecution to argue that the court should gloss over the gaps and find the accused person guilty. If this were permitted in law, the prosecution could have an innocent person put behind bars on trumped up charges. Clearly, this is impermissible and this is not what this Court has said. Conclusion: 40. We find that the investigating officer has left glaring loopholes in the investigation and there are serious discrepancies in the case set up by the prosecution. When a Court is called upon to implicitly rely on the testimony of a survivor who claims to have been unconscious at the time of commission of the gruesome act of rape, it is the bounden duty of the investigating officer to collect and place before the Court evidence which would strengthen the case rather than leaving behind glaring loopholes which throws serious doubts on the veracity of the case. It has to be remembered that the conviction under Section 376D of the IPC visits the accused with imprisonment for a term which shall not be less than 20 years and therefore, the court is required to meticulously scrutinize the evidence. It has to be remembered that the conviction under Section 376D of the IPC visits the accused with imprisonment for a term which shall not be less than 20 years and therefore, the court is required to meticulously scrutinize the evidence. Upon a thorough evaluation of the circumstances presented by the prosecution, the only reasonable inference that can be drawn is that the prosecution case is plagued by inherent improbabilities and irreconcilable contradictions. These factors narrated above, according to us, cast serious doubt on the integrity of the prosecution case. We are not convinced about the reliability of the investigation led by PW23, and the credibility of the survivor’s solitary testimony, which has formed the basis of the determination of guilt. The defence has successfully highlighted evident absurdities and inherent weaknesses in the survivor’s testimony. Given these inconsistencies in the narrative of the prosecution, we are not in a position to hold that the testimony of the survivor could be deemed absolutely trustworthy, unblemished, and of a sterling quality that would inspire complete confidence. The accused have highlighted serious defects in the prosecution narrative and they highlight that serious travesty of justice would result if four young men are put behind for two decades on the strength of this evidence. We have no other option but to conclude that the survivor’s testimony does not meet the threshold of a “sterling witness” to substantiate the charges against the accused. Although the medical evidence suggests that the survivor has suffered sexual abuse, it does not confirm that this was the result of gang rape by four men in recent times. The injuries documented by PW9 are inconsistent with the expected level of violence one would anticipate if the survivor had endured sexual abuse as alleged. The absence of bodily fluids on the survivor’s undergarments further weakens the prosecution’s case. The prosecution’s case is also compromised by the implausibility of such an assault occurring near a concrete barrier at Fort Kochi and in the corridor of the 2nd floor of the Jewel Arcade in Ernakulam. Additionally, the failure to collect crucial evidence such as call data records, tower dump details and CCTV footage from the vicinity - which would corroborate or contradict the accused and the survivor’s movements across at least five locations over approximately 100 kilometers in ten hours - significantly undermines the prosecution’s case. Additionally, the failure to collect crucial evidence such as call data records, tower dump details and CCTV footage from the vicinity - which would corroborate or contradict the accused and the survivor’s movements across at least five locations over approximately 100 kilometers in ten hours - significantly undermines the prosecution’s case. These gaps, omissions, and contradictions cannot simply be dismissed as investigative shortcomings to sustain a finding of guilt against the accused. In light of these evident discrepancies, the conviction arrived at against the accused is untenable as the foundation of the prosecution case collapses under substantial doubt. As held by the Supreme Court in Nirmal Premkumar (supra), while a conviction may rest solely on a survivor’s testimony, such evidence must undergo stringent scrutiny. After a comprehensive evaluation of the evidence, we are unable to conclude that the circumstances from which an inference of guilt is drawn have been cogently and firmly established in this case. The circumstances do not appear consistent with the guilt of the accused or inconsistent with their innocence. In light of this, we are inclined to allow this appeal. 41. In the result, these appeals are allowed. The conviction and sentence of the appellants, who are accused Nos. 1 to 4 in S.C. No. 22 of 2019 on the file of the Additional Sessions Judge (For the Trial of Cases relating to Atrocities and Sexual Violence against Women and Children), Ernakulam, is set aside. We acquit the appellants and direct that they be set at liberty forthwith if their continued incarceration is not required in any other case.