JUDGMENT : V. SRISHANANDA, J. 1. Heard Sri Shivakumar Malipatil, learned counsel appearing for the appellants and Sri Jamadar Shahabuddin, learned High Court Government Pleader appearing for the respondent-State. 2. Appellants are accused Nos.1 and 2, who suffered an order of conviction in S.C. No.24/2016 dated 30.10.2019 by the District and Sessions Judge, Yadgiri, (for short ‘trial Court’), and sentenced as under: “The accused Nos. 1 and 2 are sentenced to undergo rigorous imprisonment for three years and with a fine of Rs.500/- each. In default of payment of fine amount, they shall undergo 15 days simple imprisonment for the offence under Section 366 of Indian Penal Code. Further, accused Nos. 1 and 2 are sentenced to undergo rigorous imprisonment for two years and with a fine of Rs.500/- each. In default of payment of fine amount, they shall undergo 15 days simple imprisonment for the offence under Section 354A(1) of Indian Penal Code. Further, accused Nos. 1 and 2 are sentenced to undergo rigorous imprisonment for three years and with a fine of Rs.500/- each. In default of payment of fine amount, they shall undergo 15 days simple imprisonment for the offence under Section 354-B of Indian Penal Code. Further, accused Nos. 1 and 2 are sentenced to undergo rigorous imprisonment for two years and with a fine of Rs.500/- each. In default of payment of fine amount, they shall undergo 15 days simple imprisonment for the offence under Section 354-D of Indian Penal Code. Further, accused No.1 is sentenced to undergo rigorous imprisonment for three and half years and with a fine of Rs.5,000/-. In default of payment of fine amount, accused No.1 shall undergo simple imprisonment for three months under Section 376 , 511 of Indian Penal Code. Further, accused Nos. 1 and 2 are sentenced to undergo simple imprisonment for six months for the offence under Section 504 of Indian Penal Code.” 3. Facts in brief, which are utmost necessary for disposal of the present petition, are as under: 3.1 Kodekal Police filed a charge-sheet against the accused-appellants. The charge-sheet materials disclose that on 23.01.2015 victim lady after completing the Court work was proceeding towards the house of PW4, who is her sister, which is situated at Hirehalli Village. Facts in brief, which are utmost necessary for disposal of the present petition, are as under: 3.1 Kodekal Police filed a charge-sheet against the accused-appellants. The charge-sheet materials disclose that on 23.01.2015 victim lady after completing the Court work was proceeding towards the house of PW4, who is her sister, which is situated at Hirehalli Village. After she de-boarded the bus at about 5:30 P.M., when she was proceeding towards the house of her sister, present appellants came in a car bearing No.KA-22/N-0385, abducted her and they took her near the lonely place on the banks of a Nala(Canal). 3.2 Both the accused used their force and tied the hands of the victim lady and disrobed her. They lifted the saree and after removing undergarments of the victim lady and attempted to have a forcible sexual intercourse. 3.3 In order to escape from the clutches of the appellants, victim lady screamed loudly. At that juncture accused/appellants gagged her mouth, but after sufficient struggle victim lady got rescued herself from the clutches of the appellants and again raised hue and cry. 3.4 Hearing the huge hue and cry, husband of PW4, and so also Mallappa and Somanna rushed to the spot. On seeing them, appellants ran away from the spot. 3.5 Later on, accused No.1 threatened the victim lady that somehow she has escaped from their clutches, but he would find suitable opportunity and would rape her. Accused No.2 also gave life threat before leaving the place. 3.6 After rescuing the victim lady, since she was under shock, after discussing with the family members, a complaint came to be lodged with Kodekal Police on 24.01.2015 at about 6:15 p.m. After registering the case, Police investigated the matter and filed charge-sheet. 3.7 Presence of the accused were secured by the Sessions Judge and charges were framed. Accused persons pleaded not guilty, therefore, trial was set. 4. In order to bring home the guilt of the accused, prosecution examined 14 witnesses as PWs.1 to 14 and placed on record 08 documents which are exhibited and marked as Exs.P1 to P8, besides marking the car, which was used for abducted the victim lady, as MO.1. 5. Accused persons pleaded not guilty, therefore, trial was set. 4. In order to bring home the guilt of the accused, prosecution examined 14 witnesses as PWs.1 to 14 and placed on record 08 documents which are exhibited and marked as Exs.P1 to P8, besides marking the car, which was used for abducted the victim lady, as MO.1. 5. After conclusion of the recording of the evidence, the accused statement as is contemplated under Section 313 of CR.P.C. , was recorded, wherein accused persons have denied all the incriminating circumstances, but failed to adduce any defence evidence nor furnished any written submissions as is contemplated under Section 313(4) of CR.P.C. 6. Later on learned trial Judge heard the parties and on considering the oral and documentary evidence placed on record in a accumulative manner, convicted the accused persons for the aforesaid offences. 7. Being agreed by the same, the accused are before this Court in this appeal on following grounds: That, the impugned judgment convicting the accused by the trial court is illegal and contrary to law, facts and evidence on record. That, the learned Sessions Judge has not applied judicious mind in considering the evidence of the witnesses who have given contradictory statement before the court and there are numerous contradictions and omissions but the trial court has failed to take notice of the same and landed in error of judgment and thereby there is miscarriage of justice, hence the impugned judgment is liable to be set-aside by acquitting the accuseds/appellants. That, the PW-1 Narasappa who is spot panch turned hostile and not supported the case of prosecution and the other co-panch CW-3 Basanna was not examined, hence prosecution failed to prove spot where the offence alleged to have been committed this important aspect is not considered by the trial court which amounted miscarriage of justice. That, in Ex-P-2 alleged spot panchanama the spot is in the land of Tirupati S/o Jatteppa and the said land is smooth and wet but I.O. PW-1 F.A. Khan in his cross examination admitted that, there is water and not wet met and PW- 2 victim lady admitted in her cross that, she not noticed whether her cloths staired with mud or not. Hence the case of prosecution is false and baseless and the judgment under appeal is fit to be set-aside. Hence the case of prosecution is false and baseless and the judgment under appeal is fit to be set-aside. That, it is further submitted that, the cloth of victim lady were not seized by the I.O. and they are not produced before the court and not mentioned in the column No. 11 of charge sheet but it is strange that how the cloths were send FSM for analyses and again they are not produced before the Hon'ble Court and not marked as M.O. Hence this important aspect which goes to the root of the case of prosecution as completely ignored by the trial court, thereby there is great miscarriage of justice to the accused. Hence the impugned judgment is liable to be set-aside. That, the victim lady deposed before the trial court the time of incident is 5:30PM but the so-called eye witnesses to the incident i.e. PW-3 Sangappa and PW-4 Rayamma and sister's husband stated in their deposition as 7:30PM the time of the incident. Hence there is no corroboration of the evidence. Further the alleged eye witnesses PW-5 & PW-6 Mallanna and Somanna whose names does not found in FIR and they have stated time of incident between 5 to 5:30PM, hence there is a material variation in respect of the time of incident as stated by the witnesses. Hence the Hon'ble trial court has not at all considered the cross examination of the witnesses and failed to note the omission and contradiction and also the exhogerration stated by the witnesses. Therefore the impugned judgment is not sustainable in the eye of law. It is apparent on the face of record that, the PW-2 victim lady and PW-3 to PW-6 the alleged eye witnesses have not deposed any threatening out words in their evidence. Hence prosecution has not proved the offence U/sec. 506 of IPC . Further PW-3 to PW-6 have not deposed any abusive words corroborating the evidence of victim lady and victim lady has not also not stated abusive words in the complainant Ex-P-3. Therefore offence U/sec. 504 of IPC is also not proved. Therefore the impugned judgment is not according to law and same is not sustainable and fit to be set- aside. Further PW-3 to PW-6 have not deposed any abusive words corroborating the evidence of victim lady and victim lady has not also not stated abusive words in the complainant Ex-P-3. Therefore offence U/sec. 504 of IPC is also not proved. Therefore the impugned judgment is not according to law and same is not sustainable and fit to be set- aside. That, the trial court has failed to take notice that, there is a delay of more than 24 hours in lodging the complaint is also fatal to the case of prosecution even though police station is less than 20 kilo meters from the village. That, the victim lady is education lady and she is graduate and strangely failed to name the bus in which she traveled from Yadgir to Shorapur and Shorapur to Hirehalla. In her cross examination she admits that, she was not having phone and which is contrary to the statement of PW-3 who says that, PW-2 victim lady phoned him said she is coming to the village. Further the victim lady has also not produced bus ticket to the 1.0. In the complaint she has not stated any abusive or threatening words and in her deposition also she has not stated any threatening words and the words which are regarding the act of use of criminal force are different from her version in the complaint. Further there are no external injury on her and nor she stated regarding the sustaining any injury even though her hands were tied forcibly from back side and placed are horizontally on the land. Hence her evidence is improbable and un- trusted. Therefore the prosecution case false and baseless hence the conviction of the accused is bad and therefore impugned judgment is liable to be set aside and the reasons given in Para No. 24 of Judgment to believe her evidence are baseless. That, according to the complaint and case of the prosecution it is alleged that, the accused lifted the saree and langa of victim lady and attempted to commit the rape but PW-3 to PW-6 stating in their evidence that, accused removed her cloths and attempted his amounts to clear contradiction and omission. Hence the evidence of these witnesses is unworthy of credence and the Hon'ble trial court has failed to appreciate this major contradiction and omission in the prosecution evidence. Hence the evidence of these witnesses is unworthy of credence and the Hon'ble trial court has failed to appreciate this major contradiction and omission in the prosecution evidence. Therefore the impugned judgment is fit to be set aside. That, the PW-3 admits in the cross examination that sitting in front of his house he can see the persons alighting from the bus and he also stated that PW-2 informed him over phone regarding coming to his house further there is no whisper regarding the taking of the car while the accused were escaping from the scene and witnesses trying to catch accused. That, the victim lady even though she is residing at Bengluru and working as a promoter in Garments but she has stated in the complaint that she was residing with her husband since 5 to 6 years and also she admits that, she has filed maintenance petition against her husband PW-5 admits that husband of PW-2 has married another lady this is a suppression of truth by the prosecution and I.O. has failed to investigate and produce records of maintenance and also regarding FIR or charge sheet of the atrocities cases filed against the complainant to which complainant was attending on that day. Further prosecution has failed to prove the presence or coming of the victim to the place of incident on that day. The I.0. has not collected the ROR of the land of Tirupati were the alleged incident and not recorded the statement of the owner of the land apart from not got prepared sketch map from the concerned Engineers. Hence the investigation is not fair and proper and case is filed on imaginary facts. The evidence of PW-7 & PW-8 i.e. mother and brother of the victim respectively were hear say witnesses. PW-7 has not enquired PW-3 victim and PW-8 not deposed that immediately her sister informed him. Hence holding that, their evidence is admissible U/sec. 6 of the Evidence Act as mentioned in Para No. 39 of the judgment is quite illegal. The medical officer PW-12 stated there is no history of intercourse and the name of the appellants as not mentioned in the history. Hence holding that, their evidence is admissible U/sec. 6 of the Evidence Act as mentioned in Para No. 39 of the judgment is quite illegal. The medical officer PW-12 stated there is no history of intercourse and the name of the appellants as not mentioned in the history. Further it is stated that, there is no conclusion on the breast and there are no stains or tears on the cloths apart from there are no scratches and no bruises and no laceration on the body of the victim. Hence the whole prosecution story is cocked up and false and baseless. Hence impugned judgment is liable to be set aside and appellants are entitle for clear acquittal. 8. Learned counsel for the appellants Sri Shivakumar Malipatil, would contend that a false case has been foisted against the accused and delay in lodging the complaint is not properly explained and sought for allowing the appeal. 9. He would further contend that the entire case of the prosecution is nothing but a neatly woven story in order to take revenge on the appellants and there is no iota of truth in any one of the allegations made in the complaint and sought for allowing the appeal. 10. Alternatively, he would contend that the conviction of the appellant/accused for the offence under Section 354(D) is not at all maintainable as it is a solitary incident. 11. Sri Shivakumar Malipatil would also contend that in the event this Court upholding the order of conviction, custody period already undergone by the appellants may be treated as imprisonment and to allow the appeal in part. 12. Per contra, Sri Jamadar Shahabuddin would contend that entire case of the prosecution hinges on the oral testimony of PW2, who is the victim lady. Her testimony is corroborated by testimony of PW3, who is her brother-in-law and the two independent witnesses, namely, Mallappa and Somanna, who are examined as PW5 and PW6, who have rescued the victim lady from the clutches of the appellants/accused. 13. Sri Jamadar Shahabuddin would also contend that materials placed on record would be sufficient enough to maintain the conviction for all the offences and sought for dismissal of the appeal. 14. 13. Sri Jamadar Shahabuddin would also contend that materials placed on record would be sufficient enough to maintain the conviction for all the offences and sought for dismissal of the appeal. 14. Insofar as the alternate submission is concerned, Sri Jamadar Shahabuddin would contend that minimum punishment has been imposed by the Court for all the proved offences and all these sentences are ordered to run concurrently and no mercy can be shown nor there can be any reduction of the sentence and sought for dismissal of appeal in toto. 15. Having heard the arguments on both sides, this Court perused the material on record meticulously. On such perusal of the material on record, the following points would arise for concentration: 1) Whether the material evidence placed on record is sufficient enough to maintain the conviction of the appellants/accused for all the aforesaid offences? 2) Whether the impugned judgment is suffering from legal infirmity or perversity? 3) Whether the sentence is excessive? 4) What order? Regarding point Nos.1 and 2:- 16. In the case on hand, acquaintance of the accused persons is not in dispute. So also the car that has been used in the incident has been marked as MO.1 and the same has been used for abducting the victim lady when she was returning from the Court to her sister’s place at Hirehalli. After alighting the bus, when she was proceeding by walk towards her sister’s house, victim lady was abducted by both accused/appellants and she was taken to a lonely place and thereafter they tied her hands, made her to fall on the ground and after lifting her saree and petticoat, accused No.1 tried to have forcible sexual intercourse with her. At that juncture, victim lady raised hue and cry, but both the accused persons continued with their act and somehow the victim lady got escaped from the clutches of the appellants/accused, she again raised the hue and cry. 17. On hearing the hue and cry made by the victim lady, it is the brother-in-law of the victim lady, who was examined as PW3 and two independent witnesses, namely, Mallappa and Somanna, who were examined as PWs.5 and 6 came to the spot and on seeing the PWs.3, 5 and 6, accused persons ran away from the spot. 17. On hearing the hue and cry made by the victim lady, it is the brother-in-law of the victim lady, who was examined as PW3 and two independent witnesses, namely, Mallappa and Somanna, who were examined as PWs.5 and 6 came to the spot and on seeing the PWs.3, 5 and 6, accused persons ran away from the spot. Thereafterwords, at the time of leaving the spot, both the accused/appellants have given the life threat to the victim lady. These aspects of the matter have been deposed to with graphic details by not only the victim lady, but PWs.3, 5 and 6. 18. Admittedly, PWs.2, 3, 5 and 6 did not nurture any previous enmity or animosity against the accused to falsely implicate the accused persons. The car that was used in the incident was seized by the investigation agency after arresting the accused persons and pursuant to the voluntary statement. The said car is marked as material object No.1 and the same has been identified by the prosecution witnesses. 19. All these factors if viewed cumulatively, it is crystal clear that when the first accused tried to have the forceful sexual intercourse, PW3, PW5 and PW6 came there and but for their presence, they act would have been committed by accused No.1. 20. Taking note of these aspects of the matter, abducting the victim lady and taken her to the lonely place in a car, thereafterwards forcibly used criminal force to disrobe her and misbehaving with the lady and first accused tried to have forcible sexual intercourse after lifting the saree and the petticoat, would be sufficient enough to maintain the conviction of the accused/appellants for the offences under Sections 366 , 376 read with 511 and Sections 354(A)(1) and 354(B)of IPC . 21. However, the material object on record would not be sufficient to maintain the conviction for the offence under Section 354(D) of IPC is concerned, as it is an isolated incident and there is no evidence on record that there was an act of stalking by both the accused persons repeatedly. 22. Further, at the time of leaving the place, both the accused persons have given life threat to the victim lady and therefore, conviction of the appellants for the offences for the offence under Section 504 and 506 of IPC also needs no interference. 23. 22. Further, at the time of leaving the place, both the accused persons have given life threat to the victim lady and therefore, conviction of the appellants for the offences for the offence under Section 504 and 506 of IPC also needs no interference. 23. In a matter of this nature, the testimony of the victim lady if inspires a confidence, that alone could be made as sole basis for recording an order of conviction. 24. In the case on hand, apart from the oral testimony of victim lady the oral testimony of PWs.3, 5 and 6 are also available on record. Assuming that the oral evidence of PW3 is an interested testimony, the oral testimony of PWs.5 and 6, who are independent, witnesses cannot be brushed aside. 25. The appeal grounds are not sufficient enough to discard the prosecution evidence to any extent. Under such circumstances, the conviction of the appellants/accused for the remaining offences except offence under section 354(D) needs no interference by this Court, even after re-appreciation of the material evidence on record. 26. In view of the foregoing discussion, point Nos.1 and 2 are answered partly in the affirmative. Regarding point No.3:- 27. In the case hand, the learned Trial Judge has imposed the minimum sentence for the proved offences. 28. Taking note of the fact that accused No.2 has actively participated in disrobing the victim lady and his conviction for the offence under Section 354(B) is to be maintained and three years minimum imprisonment granted to accuse Nos.1 and 2 for the offences under Sections 354(B), 354(A)(1) and 366 of IPC needs no interference. 29. Insofar as accused No.1 is concerned, it was an attempted rape and therefore, the learned Trial Judge granted the sentence of imprisonment for three and half years for the offence under Section 376 read with Section 511 of IPC , which also needs no interference as it is the minimum punishment. 30. Thus, the only interference that is warranted by this Court in this appeal is the conviction of the appellants/accused being set aside for the offence under Section 354(D) of IPC . As such, the sentence and the fine ordered under Section 354(D) needs to be set aside. Accordingly, point No.3 is answered partly in the affirmative. Regarding point No.4:- 31. Thus, the only interference that is warranted by this Court in this appeal is the conviction of the appellants/accused being set aside for the offence under Section 354(D) of IPC . As such, the sentence and the fine ordered under Section 354(D) needs to be set aside. Accordingly, point No.3 is answered partly in the affirmative. Regarding point No.4:- 31. In view of the finding of this Court on point Nos.1 to 3 as above, the following: ORDER i. The appeal is allowed in part. ii. While maintaining the conviction of the appellants for the remaining offences, appellants/accused are acquitted for the offences under Section 354(D) of IPC . iii. Consequently, the sentence of imprisonment and fine ordered for the offence under Section 354(D) of IPC is hereby set aside. iv. Rest of the sentence stands unaltered. v. The appellants/accused are granted time till 20.07.2025 to surrender before the trial Court for serving the remaining part of the sentence. vi. Ordered accordingly. 32. Office is directed to return the Trial Court Records with copy of this judgment, for issue of modified conviction warrant.