Shantappa and Others vs The State and Others

K.N. Phaneendra, J.—This appeal is directed against the judgment of conviction and sentence passed by the II-Additional Sessions Judge, Bijapur, in S.C. No. 07/2007 dated 19.07.2010 in convicting Accused Nos. 1 to 3, the appellants in Crl. A. No. 3684/2010, 3695/2010 and 3662/2010 for the offences punishable under Sections 376(2)(g), 366, 323 and 506(2) of IPC sentencing each of Accused Nos. 1 and 2 to undergo Rigorous Imprisonment for a period of 10 years and to pay fine of Rs. 10,000/- with default Sentence. Rigorous Imprisonment for a period of three years and to pay fine of Rs. 5,000/- each for the offence punishable under Section 366 of IPC with default sentence, further sentencing all the accused for Rigorous Imprisonment for one month for the offence punishable under Section 323 and also sentencing to suffer Rigorous Imprisonment for six months for the offence punishable under Section 506(2) of IPC.

Accused Nos. 1 to 3 have preferred separate appeals before this court. Accused No. 1 has preferred appeal in Criminal appeal No. 3684/2010 and Accused No. 2 in Criminal Appeal No. 5695/2010 and Accused No. 3 in Criminal appeal No. 3662/2010. As all the appeals arising out of the common judgment passed by the trial Court and the grounds urged before this court by the appellants are almost similar, all the appeals are taken-up together for consideration and this common judgment is passed.

Before adverting to the grounds urged before this court by the appellants, it is just and necessary to bear-in-mind few factual aspects that emanate from the records, which are as under:-

P.W. 1, a girl by name Vijayalakshmi, aged about 21 years lodges a complaint against Accused Nos. 1 to 3 as per Ex. P1 narrating that, on 15.09.2006, she was proceeding to college at Davalagi Village and she came to Muddebihal bus stand. At that time Accused Nos. 1 and 2 who were there, eve-teased her. On 18.09.2006, at about 4.00 p.m., she along with her friend, Renuka had been to a Photo Studio, in that context at about 7.00 p.m., she requested the said Renuka to accompany her to go to the Photo Studio. In that context, she was proceeding to the house of Renuka, when she reached KGMPS school, Accused Nos. 2 and 3 caught hold her and Accused No. 3 gagged her mouth with a cloth both of them took her near Basavanna Temple. At that time, Accused No. 1 was ready with a motor cycle and all of them took this girl on the motor cycle at a distance of about 01.00 k.m. and stopped the motor cycle near a land and lifted her to the said land and Accused No. 1 first committed rape on her, thereafter, Accused No. 2 attempted to commit rape on her and thereafter, Accused Nos. 1 to 3 went away from the spot by leaving her in lurch. Thereafter, she came to the road, where she observed a person was coming from the place called Kuntogi; she requested him to leave her to Muddebihal and thereafter she came to the place called Idga and from there, ultimately, she came to her house and informed the said incident to her family members. The family members and this girl went to the police station and lodged a complaint as per Ex. P1. On the basis of such information, the police have registered a case in Crime No. 229/2006 for the offences punishable under Sections 376, 323, 506, 341 of IPC and also under Section 366 of IPC and conducted investigation and ultimately, the police found sufficient materials to send the accused persons to the trial. Hence, they laid the charge sheet against all the accused persons. The learned Sessions Judge after securing the presence of the accused persons framed charges for the above said offences and tried them, and ultimately, convicted the accused persons and sentenced accordingly as stated supra.

The prosecution in order to prove the guilt of the accused, examined as many as 21 witnesses as P.Ws. 1 to 21 and got marked Exs. P1 to P24 and 4 material objects as MOs. 1 to 4. During the course of cross-examination, Ex. D1 was also marked on the defence side. The accused persons were examined by the court under Section 313 of Cr.P.C. The accused persons have not taken any specific defence except the total denial of the prosecution case. The accused also did not choose to lead any defence evidence, as such, the learned Sessions Judge has heard the arguments on both sides and ultimately recorded the judgment of conviction.

Learned counsels who are appearing for Accused Nos. 1 to 3 in the above said case have strenuously argued before this court that the story narrated by the injured victim girl has not been appreciated properly by the trial Court. It is further contended that except the evidence of the victim girl, no other source of support is available on the record, as almost all the witnesses examined on the side of the prosecution have turned hostile. It is further contended that prior to the incident and after the incident, some circumstances narrated by P.W. 1 have not been corroborated by any evidence before the court. Further, added to that, it is suggested during the course of cross-examination of the prosecution witnesses particularly to P.W. 1 and her brother that there was some previous ill-will and hatred existed between the complainant''s family as well as of Accused No. 1. In order to wreck vengeance against the accused, though there was no incident happened, a false case has been foisted against the accused persons. It is further contended that Accused No. 2 is not standing on the same footing as that of Accused No. 1; there is no allegation even in the evidence of P.W. 1 that Accused No. 2 has committed offence under Section 376 of IPC, therefore, the trial Court wrongly recorded a finding under Section 376(2)(g) of IPC and consequently wrongly convicted and sentenced Accused No. 2 for the said offence and erroneously sentenced him along with Accused No. 1. It is further contended that no evidence is available so far as Accused No. 3 is concerned. Even otherwise, he has been sentenced to undergo imprisonment for the offence punishable under Section 366 of IPC and other offences. Therefore, looking from any angle, the judgment of conviction and sentence passed by the trial Court is erroneous and the accused persons are entitled to be acquitted.

Though it is not conceded by the learned counsel for Accused Nos. 1 and 2, nevertheless, they fairly argued before the court that in the event of this court coming to the conclusion that the judgment of conviction recorded by the trial Court has to be affirmed, in that eventuality, it is to be taken note of the fact that the accused Nos. 1 and 2 have already undergone more than 8 years of imprisonment, therefore, the period of imprisonment already undergone by the accused persons may be treated as sentence passed against them and they may be ordered to be released forthwith, by modifying the sentence of imprisonment.

Per contra, the learned HCGP very strenuously contended before this court that though the evidence of some of the witnesses are not available to the prosecution and though they turned hostile to the prosecution, nevertheless, the credibility of the complainant-P.W. 1 (victim girl) is not shaken even during her cross-examination. It is an undisputed fundamental principle of law that the undisturbed and credible testimony of the victim girl, if it is trust-worthy for acceptance, then the court shall not hesitate to accept the version of the victim girl and that can be the sole basis for the purpose of convicting the accused persons. In this particular case, even though a lengthy cross-examination has been adverted to P.W. 1, nothing has been elicited in her evidence so as to destroy the evidence given by her with regard to happening of the incident. Though some suggestions have been made to P.W. 1 and her brother with regard to some previous incident and also with regard to the conduct of P.W. 1 and character of the family members of P.W. 1, but those suggestions remained as suggestions without any proof before this court. Any number of suggestions or any amount of suggestions made to the witnesses cannot take the place of proof, they remain only as suggestions, unless such suggestions are in reality proved to the satisfaction of the Court though not beyond reasonable doubt. Looking to the evidence placed before the court, the evidence of P.W. 1 coupled with the evidence of the Doctor and other circumstantial evidence and the evidence of the Investigating Officer it clearly discloses that the prosecution has proved the case against all the accused persons beyond all reasonable doubt. Therefore, there is no room for this court to interfere with the judgment of conviction and sentence passed by the trial Court.

Having heard the arguments of both sides, now this court has to see whether the trial Court has committed any serious irregularity or illegality in convicting the accused persons for the offences punishable under Sections 376(2)(g), 366, 323 and 506(2) of IPC and sentenced the accused persons for the above said offences.

In order to appreciate the above said rival contentions of the parties, it is just and necessary for this court to re-appreciate the materials on record; though not in detail. Though, the court has to appreciate the evidence of the witnesses, nevertheless, the court has to ascertain whether the evidence placed before the court are trust-worthy for acceptance and they are sufficient to convict the accused persons for the above said offences.

P.W. 1-Vijayalakshmi is the victim girl. She narrated in detail about the incident. P.W. 2-Jayashree, the elder sister of the complainant, P.W. 3-Smt. Shanthabai, mother of the complainant deposed before the trial Court that they came to know about the incident through P.W. 1. P.W. 4-Devendrappa C. Desai, P.W. 5-Mahantesh C. Daddi and P.W. 6-Yalagurdappa V. Patil are the panch witnesses for panchnama-Exs. P4 and P5. Ex. P4 is the spot panchnama and Ex. P5 is the mahazar drawn at the place from where PW-1 was kidnapped. These witnesses in fact have turned hostile to the prosecution. However, they have admitted their signatures in the panchnama. P.W. 7-Somappa Lingappa Meti and P.W. 8-Basavaraj Sharanagouda Narasaraddi are the Panch witnesses to Ex. P6, which was drawn at the time when a motor cycle, alleged to have been used in the commission of the offences, was seized. The said motor cycle was subsequently released in favour of the owner of the vehicle and that has not been confiscated to the State. P.W. 9-Renuka, daughter of Ramesh Mantale, a friend of the complainant, who accompanied the complainant to the photo studio to collect the photographs, but she also partially turned hostile to the prosecution. But she has only stated that she knew P.W. 1 and they were studying together. P.W. 10-Dr. Mahadev Gangappa Desai, who examined Accused No. 2 on 26.09.2009 and also issued his opinion, which is at Ex. P8, Ex. P9-Chemical Analysis Report and Final Report with regard to Accused No. 2. There is no dispute with regard to the factum that Accused No. 2 is capable of performing sexual activity, therefore, the evidence of the Doctor in this regard has become insignificant for consideration. P.W. 11-Hanamant Rangappa Nayakmakkala, the owner of the motor cycle seized in this case, who got the motor cycle released in his favour. He also turned hostile to the prosecution. But, he admits the fact that he has given motor cycle to the accused persons. P.W. 12-Dr. Ramappa Madivalappa Sajjan, who examined Accused No. 1 on 20.09.2006, he also gave his opinion as per Exs. P16, 17, 18 and 19 and the said documents show that he has collected the clothes and pubic heirs of Accused No. 1 etc. But he has deposed in his cross-examination that on Examination of Accused No. 1 he found no signs of recent sexual intercourse by Accused No. 1. However, there is no dispute so far as Accused No. 1 is concerned that he is also capable for sexual activity. Therefore, the evidence of P.W. 12-Doctor is also not so significant for consideration. P.W. 13-Ningappa, PSI, Muddebihal, who registered the case as per Ex. P1 on 18.09.2006 and sent the FIR-P12 to the Court. P.W. 14 - Bheemana Gowda. According to the prosecution, who has stated to have gave lift to the injured P.W. 1 from the place of incident to the place called Idga Maidan. He also turned hostile to the prosecution. P.W. 15-Sidaraya, who is running the Photo Studio by name ''Sudha Photo Studio''. He also denied that he knew the complainant and also not supported the case of the prosecution to any extent. P.W. 16-Bande Nawaz and P.W. 17 - Buddesab are the panch witnesses for seizure of a towel - MO. 3 from Accused No. 1 under panchnama-Ex. P15. But these two witnessed also turned hostile to the prosecution. P.W. 18-Dr.Rjashree Kuba, who examined the victim girl on 19.09.2006 at 9.00 am, has explained injuries sustained by the injured and issued the provisional certificate as per Ex. P20. P.W. 19-E. Kalikrishna, PSI of Talikote P.S.I. The evidence of these witnesses have played dominant role, which I would like to discuss later. Sri Kali Krishna, PSI, has deposed that, on 25.09.2006, he arrested Accused No. 2 when he was produced before him and recorded his voluntary statement and sent him for medical examination, etc. P.W. 20-Siddanna, who stated to have saw the accused persons abducting the complainant on the motor cycle, but he also turned hostile to the case of the prosecution. The last witness P.W. 21 - Krishnappa is the D.S.P., who further investigated the matter and laid the charge sheet against the accused persons.

The prosecution, as could be seen from the records, has led the evidence of P.Ws. 1 to 21. As narrated above, most of the witnesses have not supported the case of the prosecution. It appears the prosecution only relied upon the evidence of P.W. 1, victim, PW-18 the Doctor, and the evidence of the Investigating Officer. There is no allegation whatsoever so far as the Investigating Officer is concerned, as he had no reason to implicate the accused persons falsely into the crime and lay charge sheet against the accused persons. Even such suggestions are not made to the Investigating Officers. Therefore, there is no reason to disbelieve the Investigating Officer. Though the panch witnesses to the spot, recovery of motor cycle and the place of incident have turned hostile to the prosecution, but while drawing of the mahazars at the place of the incident, no recovery is made at the spot itself. Therefore, witnesses turning hostile to the prosecution so far as those mahazars, will not in any way affect the case of the prosecution. The entire case of the prosecution revolves around the solitary evidence of P.W. 1 and the Doctor. In this background, the court can proceed along with the evidence of P.W. 1, and the Doctor first.

The trial Court in fact, in detail discussed the evidence of P.W. 1 and also the cross-examination of P.W. 1. As I have already narrated that in Ex. P1, P.W. 1 in a vivid and descriptive manner has stated about as to how the incident has happened on that particular day. Even prior to the incident there was some eve-teasing by Accused Nos. 1 and 2 so far as the complainant is concerned. Though it is not supported by any evidence, nevertheless that has not been properly adverted to in the course of cross-examination. Further added to that no cross-examination is adverted to P.W. 1 as to why she has to depose falsehood against the accused persons at the stake of her own character and future life. It goes without saying that if the case filed by P.W. 1 is false and she falsely implicated the accused persons on the basis of a false story of sexual assault on her, that story would definitely affect the future life of that girl such as self-respect, marriage prospects, etc. and character assassination would take place by her own statement, before the Court. Therefore, invariably the Apex Court and different High Courts have categorically held that no lady normally would come forward to say a false story by assassinating her own character by means of giving vivid description of the incident of rape. In this background, the evidence of P.W. 1 has to be considered by this Court.

P.W. 1-victim girl has in fact fully supported the case of the prosecution by reiterating the averments made in the complaint. She has stated that she is the resident of Muddebihal and Accused Nos. 1 to 3 are also the residents of Muddebihal; she was studying in II PUC at SVS College at Dhavalagi at that particular point of time and she used to go to Dhavalagi in bus from Muddebihal. While specifically speaking about the incident, she stated that on 16.09.2007, Accused Nos. 1 and 2 were standing near the bus stand and after seeing P.W. 1, they started talking something between themselves, but she did not give much attention to them on that day. But, on 18.09.2006, she went along with her friend Renuka at about 4.30 pm to go to a photo studio for the purpose of collecting photographs taken by Renuka for the purpose of her Identity Card. After collecting the photos, P.W. 1 and her friend Renuka came upto Jagati Katti together at that time, Accused Nos. 1 and 2 were sitting near the said Jakti Katti. Thereafter, Renuka went to her house parting from the victim girl at about 7.00 p.m. and P.W. 1 started proceeding towards her house. When she came near KGMPF school, Accused No. 1 came from her behind from the compound wall of the temple and caught hold her neck and gagged her mouth with a cloth and immediately Accused Nos. 2 and 3 persons came there from a compound wall of the temple nearby. Actually Accused No. 2 brought a motor cycle and Accused Nos. 1 and 3 lifted her and made her to forcibly sit on the motor bike, thereafter, they took her near Kuntoji Village and there in fact the accused persons dragged her about 40 to 50 feet into the agricultural land and Accused No. 1 forced her to sleep with him on the ground and forcibly committed sexual intercourse with her in spite of her resistance, against her will and also without her consent. She vividly stated as to how Accused No. 1 has committed sexual intercourse with her. There is no need to explain all those facts as the same is available in her evidence on record itself. After Accused No. 1 has ravished her, Accused No. 2 also preparing himself to commit sexual intercourse with the victim. He in fact started molesting her, then, she requested him not to do anything to her. Then in fact Accused No. 2 told the same to Accused No. 1, then Accused No. 1 told Accused No. 2 not to do anything to her. Thereafter, Accused No. 2 left her. The victim girl has not specifically stated anything about any specific overt-act of Accused No. 3. It appears Accused No. 3 was standing near the haystack by holding clothes of the victim girl. Perhaps, he was the silent spectator to the illegal acts of Accused Nos. 1 and 2. It goes without saying that Accused No. 3 though not willing to commit sexual intercourse with victim girl, nevertheless he did not stop Accused Nos. 1 and 2 from committing such a heinous offence. Thereafter, it is stated that Accused Nos. 1 to 3 went away towards Muddebihal. With great difficulty, she came weeping near the road which lead to Idga Maidan. At that time, a person came on a motor cycle and she briefly told him about the incident and requested him to give lift to her to Muddebihal, and the said person took her on his motor bike upto Idga Maindan and left her there. Thereafter, slowly she came by walking near Om Shanthi building, where she gave a ring to Renuka from a coin telephone booth and disclosed her the incident. By that time, her mother and sister went to Renuka''s house to enquire about the victim. Thereafter, she came home and disclosed the said incident to her elder sister Jayashree and also her mother. Thereafter, they went to police station and the victim lodged a complaint as per Ex. P1.

Looking to the above said evidence of the victim girl in examination-in-chief, she has very meticulously and vividly explained the acts of Accused Nos. 1 and 2 particularly, and there is no specific allegation against Accused No. 3 that he has committed any sexual act with her. But the facts of the case remain that Accused No. 2 had prepared himself for the purpose of committing such an offence. Looking to the cross-examination of this witness, though the witness was subjected to very lengthy cross-examination, except putting certain suggestions with regard to the character of brother, sister and family members and also the complainant, nothing has been elicited by way of admission that a false case has been foisted against the accused persons, in order to substantiate the defence taken-up by the accused. Some questions have also been put with regard to the conduct of the complainant, but no fruitful evidence has been elicited in order to come to a definite conclusion that the said victim had bad character and by virtue of having such bad antecedent and conduct, to falsely implicate some other persons, she is making such allegations in order to defend herself from such bad conduct and to a wrongful gain. When such things are not available, merely because some suggestions have been put to the victim girl and also her brother, mother and sister, it would not take the place of proof. Even otherwise, if there is any ill-will or hatred existed between the accused persons and the brother of the victim girl, as suggested to the brother of the victim girl, it cannot be said that the victim girl and her family members would scoop a false story to falsely implicate Accused Nos. 1 to 3 in such a heinous offences, at the cost of future of the victim girl, in the absence of any such incident being happened.

The argument of the learned counsel for the appellants/accused is that P.W. 1 for defending herself of bad Conduct and Character, foisted a false case against the accused persons. It is well settled fact that even a prostitute cannot be forced to have sexual intercourse against her will or consent. Here, in this case, the victim girl has categorically stated that Accused No. 1 has committed sexual intercourse with her, against her will and without consent. Such elucidation of facts from the mouth of the victim girl cannot be easily brushed aside. Therefore, though certain facts related to above are explained in the course of cross-examination, in my opinion, those facts are not properly proved before the court. The trial Court in fact has in detail discussed the cross-examination portion of the witnesses and came to the conclusion that said cross-examination is in no way helpful to the accused, as nothing has been elicited from the mouth of the victim girl so as to draw an inference that a false case has been foisted against the accused persons. Of course in the course of cross-examination of DW. 1, he got marked Ex. D1. From Ex. D1 it is elicited that after the incident, first she went to her house and narrated the incident before her family members. But according to the deposition, after the incident a person came on the motor bike and he dropped her up to Idga Maidan and she telephoned to her friend Renuka and narrated the incident to her and thereafter she narrated the same to her mother and sister, after going home. When a ghostly incident has taken place, the victim girl must have been scared of the situation, as such, there may be some discrepancy in describing the facts and that itself cannot be seriously taken note of by the court while appreciating the materials on record. In this regard, it is worth to note hear a decision of the Hon''ble Apex Court reported in:

Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, AIR 1983 SC 753 : (1983) CriLJ 1096 : (1983) 2 Crimes 232 : (1983) 1 SCALE 665 : (1983) 3 SCC 217 : (1983) 3 SCR 280 ,

Wherein the Apex Court held that the criminal courts should not give over much importance to minor omissions, contradictions and discrepancies, which do not go to the root of the prosecution case and totally uproot and shake the basic version of the prosecution, it is inter alia observed that a witness, though wholly truthful is liable to be overawed by the Court''s atmosphere and the piercing cross-examination by defence counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill-up details from imagination on the spur of the moment.

In this particular case, as could be seen that about 40 pages cross-examination has been adverted to P.W. 1. P.W. 1 is a village girl and the Advocate. who is well-trained in the legal proceeding particularly cross-examination of the witnesses, it is very difficult to face well-trained Advocate, therefore, while answering, there may be some omissions and contradictions do occur in the evidence of such witnesses. The court has to see whether by such omissions and contradictions, the core of the prosecution case are disturbed and destroyed. When such is the case, the substratum of the evidence of the witnesses has to be accepted.

Though P.Ws. 2 and 3, the elder sister and mother of P.W. 1 are the hear-say witnesses, but there is no reason as to why they should lie before the court. It is the case of the prosecution that immediately after the incident, the victim girl went to the house and disclosed the incident to her mother and elder sister. It is quite natural that whenever, a young girl sustains such severe attack by violation of her body by some person, it is quite natural that her kith and kin are the first persons to help her, that is why, naturally, P.W. 1 narrated the incident to them. Therefore, it cannot be said that P.Ws. 2 and 3 are only hear-say witnesses, but, they are substantial witnesses, who corroborated the evidence of P.W. 1, as to whatever they have heard about the incident from her moth. Therefore, considering their evidence also, it can be safely held that the prosecution has established that the accused persons have committed such offences, as alleged against them.

Learned counsel has strenuously contended commenting upon the evidence of the Doctor that, there was no external injuries whatsoever on the person of the victim girl and also no injuries to her private parts, as such, a false implication of the accused persons cannot be over-ruled. In this background, the evidence of the Doctor play a dominant role.

As I have already narrated, Accused Nos. 1 and 2 were also categorically examined and it is an undisputed fact that they were capable of performing sexual activity and there is no denial by them. In this background, the Doctor, P.W. 18-Rajashree, who examined the victim girl on 19.09.2006 in the morning at 9.00 a.m., has stated that the said girl was brought to the hospital by a lady police with an history of rape. On examination, the said Doctor found no external injuries, but it is categorically stated that the hymen was not intact and the victim girl was bleeding due to menstruation. It is also stated that she has collected two vaginal swabs, vaginal smears, pubic hairs, etc. and sent them for FSL examination and issued Provisional certificate as per Ex. P20 and after receipt of FSL report, she issued a final report as per Ex. P21. The FSL report is not in favour of the prosecution. No spermatozoa was found in the clothes/articles of the victim, sent for examination. In the course of cross-examination, it is elicited that the sexual character of the victim was well developed and recent signs of sexual intercourse were not found. She also stated that if a girl fall on the ground or due to forcible intercourse, then there is possibility of injuries to her hands, back and hips. Basing on this cross-examination, learned counsel contends that in the absence of any external injuries or injuries to the private part, a false implication cannot be ruled-out. But it is to be borne in mind that there was three accused persons at the time of incident. It is stated that one of the accused persons caught hold the hands of the victim girl and another accused person thereafter forcibly had sexual intercourse with her. It is also there in the evidence of P.W. 1 that when three persons attacked her and Accused No. 1 forcibly laid himself upon the victim, she became very dull and speechless, therefore, it goes without saying that there may not be much protest by the victim girl and she would have passively submitted herself to the force or over power of the accused persons. When such a situation occurs, a lady submits herself to the force or over power of the accused persons, in such type of incident, one cannot expect any injuries on the victim. Further, added to that the Doctor has categorically stated that hymen was not intact. That also shows that there must be some insertion of some foreign body into the vagina of the said girl in order to break the hymen. The doctor has also stated the possibility of rupturing of the hymen due to rape or forcible intercourse. The corroboration to her opinion is there in the evidence of P.W. 1 has to be taken into consideration. There is no material is placed before the court by the accused persons during the course of cross-examination that she fell down on any projecting object at any point of time previous to the incident and due to that her hymen was ruptured or the hyman was not intact. On the other hand, the warranting circumstances particularly considering the evidence of P.W. 1, it is the case of the victim girl that due to the sexual intercourse committed by Accused No. 1, the hymen was ruptured. Therefore, the material available to corroborate the evidence of the Doctor and P.W. 1 and the looking to the warranting circumstances, the court has to draw an inference. Therefore, the arguments of the learned counsel in this context cannot be accepted, merely because there were no injuries on the body of the victim girl or to the private part and as such, it cannot be said on that ground alone the evidence of P.W. 1 has to be discarded. Therefore, looking from any angle, it cannot be said that the prosecution has not proved the case beyond reasonable doubt.

Normally, it is the fundamental basic principle that the victim girl''s evidence has to be accepted, and presumed to be true to draw an inference that she would not tell lie before the court unless her evidence is substantially rebutted or acceptable and satisfactory materials are placed to draw certain inferences that the victim girl is a false witness.

As, I have already narrated, the evidence of P.W. 1 and her kith and kin i.e., the brother, sister and mother, except putting the suggestions with regard to the character and conduct of the other members of the family no other facts are placed before the court to substantiate such suggestions. Therefore, the evidence of the victim girl cannot be over turned in any manner. Therefore, I am of the opinion that the trial Court has not committed any serious error in drawing an inference on the basis of the materials on record holding that the prosecution has proved the case beyond all reasonable doubt.

The learned counsel appearing for Accused Nos. 1 to 3 has rightly contended that the trial Court ought not have sentenced Accused No. 2 for the same offence as that of Accused No. 1, as there was no gang rape. It is seen from the records that in her evidence, the prosecutrix has never stated that Accused No. 2 has committed any rape on her. But there are ample materials to show that Accused No. 2 was prepared fully for the purpose of committing rape. In fact he committed an offence by means of molesting her and lying on the body of the victim girl and when the victim girl requested him not to harm her, then only he sought permission of Accused No. 1 and when Accused No. 1 told him not to do anything to her, he released her from his clutches. It clearly goes to show that he had an intention of committing rape on victim girl, but he could not able to complete his act due to the above said circumstances. Therefore, comparing to the act of Accused No. 1, the act of Accused No. 2 is little less than the act of Accused No. 1, because in spite of repeated requests by victim girl, Accused No. 1 did not desist himself from committing such an offence, as such, his intention was fully accomplished by means of his act. Therefore, I am of the opinion that the sentence passed by the trial Court so far as Accused No. 1 concerned, deserves to be confirmed.

So far as Accused No. 2 is concerned, as I have already stated, the act of Accused No. 2 falls little lesser than the act of Accused No. 1. Therefore, keeping Accused No. 2 on par with Accused No. 1 for the purpose of sentencing, may not be proper and appropriate. However, it is seen from the records that Accused Nos. 1 and 2 were sentenced to undergo imprisonment for a period of 10 years for the offence punishable under Section 376(2)(g) of IPC. As I have already stated, the sentence passed against Accused No. 1 is proper. Therefore, the sentence passed against Accused No. 2, in my opinion, requires to be modified.

It is brought to my notice that Accused No. 2 was arrested on 25.09.2006 and since then he has been in judicial custody. Already 8 years and 4 months have been elapsed. Therefore, I feel it just and necessary to sentence Accused No. 2 for the period of imprisonment already undergone by him and he shall be released forth with, if he is not required in any other case.

So far as Accused No. 3 is concerned, he was convicted for the offence punishable under Section 366 of IPC and sentenced him to undergo R.I. for three years.

So far as Accused Nos. 1 and 2 are concerned the sentence passed by the trial Court under Section 366, 323, and 506 of IPC are maintained. However, it is ordered that all the above said sentences shall run concurrently, as the trial Court has not passed any such order with regard to running of the sentences concurrently imposed upon the accused persons.

Accused No. 3 was arrested on 19.09.2006 and subsequently he was released on bail on 18.08.2007. After conviction, he was re-arrested on 19.07.2010 and released on 7.8.2010. Totally he has undergone the sentence of imprisonment for a period of 353 days, nearly one year.

Looking to the conduct of Accused No. 3, in my opinion, there is no need to award any more substantive sentence of imprisonment than he has already undergone. However, by enhancing the fine amount under Section 366 of IPC, the sentence already undergone by Accused No. 3 can be treated as punishment to him. Therefore, I prefer to enhance the fine amount of Rs. 5,000/- as awarded by the Trial Court to Rs. 25,000/- under Section 366 of IPC. The rest of the offences under Sections 323, 506(2) of IPC are maintained. However, it is ordered that the sentences have to run concurrently. Accused No. 3 need not to undergo any more substantive punishment of imprisonment.

Though the learned counsel for Accused No. 1 pleaded for mercy and for modification of sentence so far as Accused No. 1 is concerned. Looking to the conduct of Accused No. 1, no leniency can be shown except stating that the sentences passed against him shall run concurrently.

In view of the above observations, the following order is passed:-

(i) Crl. A. No. 3684/2010 filed by the Appellant/Accused No. 1: Shantappa, is hereby dismissed.

(ii) Crl. A. No. 3695/2010 filed by Appellant/Accused No. 2: Shivappa, is partly-allowed. The sentence of imprisonment passed against him under Sections 376(2)(g), 366, 323 and 506(2), is modified. The period of imprisonment of 8 years 3 months already undergone by him is held to be the sentence awarded against him. Therefore, Appellant/Accused No. 2: Shivappa shall be released from the custody forthwith, if he is not required in any other case, if fine amount is already deposited.

(iii) The sentence of fine imposed by the trial Court against Appellant/Accused No. 2: Shivappa, is not disturbed.

(iv) Crl. A. No. 3662/2010 filed by Appellant/Accused No. 3: Ningappa, is partly-allowed. The judgment of conviction passed against him under Section 366, 323 and 506(2) of IPC are maintained. The sentence is modified. He has already undergone the period of imprisonment for a period of 353 days. The said period of imprisonment shall be treated as sentence passed against him. However, the sentence of fine of Rs. 5,000/- is enhanced to Rs. 25,000/- and in default to pay the said fine amount, he shall undergo Simple Imprisonment for a period of Six months.

(v) Out of the fine amount of Rs. 25,000/-, a sum of Rs. 20,000/- shall be paid to the victim girl.

(vi) The sentence of imprisonment passed against all the accused under Section 366, 323 and 506 Part II of IPC shall run concurrently.

(vii) The bail bonds executed by Accused No. 3 and his sureties shall stand cancelled.

The office is hereby directed to communicate this order to the concerned Jail Authorities.