ORDER :

1. This batch of appeals arise out of a common judgment dated 20th January, 2005 passed by the Division Bench of the High Court of Kerala.

2. The facts relevant for disposal of these appeals very briefly are that for the occurrence of alleged kidnapping, wrongful confinement for 40 days, rape and gang rape of a minor girl, in all 40 accused were tried in Sessions Case No. 187 of 1999 and one accused was tried in Sessions Case No. 241 of 2001 before a Special Court. The Special Court delivered the judgment in Sessions Case No. 187 of 1999 convicting 35 of the accused under Sections 120B, 363, 365, 366-A, 368, 376(1) and 376(2)(g), Indian Penal Code and by a separate and subsequent judgment, the Special Court convicted the only accused in the Sessions Case No. 241 of 2001 under Sections 120B, 365, 363, 366-A, 368, 376(2)(g), 372 and 392, Indian Penal Code The respondents-accused filed separate Criminal Appeals before the High Court and the High Court, by the impugned common judgment, took into account the evidence adduced in Sessions Case No. 241 of 2001 in which only one accused was tried, and on that basis, set aside the conviction of not only that lone accused in Sessions Case No. 241 of 2001, but also the other 35 accused persons who were tried and convicted in Sessions Case No. 187 of 1999. This will be clear from paragraph 7 of the impugned judgment of the High Court which is quoted herein-below :

"When we scanned through the evidence, we could understand that several new materials could be brought out by the accused to strengthen their defence, in the second case. On going through the said evidence we are also convinced that few of such pieces of evidence could be used by the accused in the first cases as well, for the purpose of their effective defence. Accordingly, in these cases the evidence in both the cases can be considered together for the purpose of finding the truth in this case. Whatever available in these cases in favour of the accused shall be made use of in their favour, irrespective of where it was let in, but not vice versa."

3. The High Court after considering the evidence in Sessions Case No. 241 of 2001, came to the conclusion that there is no convincing evidence to show that the Prosecutrix (PW 3 in Sessions Case No. 187 of 1999 and PW 1 in Sessions Case No. 241 of 2001) was not an unwilling partner for the sexual intercourse, and hence the claim of the accused to at least the benefit of doubt has to be considered and acquitted all the respondents-accused who had filed the appeals.

4. Learned counsel for the State of Kerala submitted that the High Court has not at all considered the evidence that was led in Sessions Case No. 187 of 1999 and has only considered the evidence adduced in Sessions Case No. 241 of 2001 and acquitted not only the sole accused in Sessions Case No. 241 of 2001, but also the 35 other accused persons who had been convicted in Sessions Case No. 187 of 1999. He brought to our notice the provisions of Sections 385(2) and 386 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") to show that the appellate Court can send for the "record of the case" and after perusing "such record", decide the appeal in one of the ways indicated in several clauses of Section 386, Cr.P.C.

5. Learned senior counsel for the respondents, on the other hand, submitted that on the evidence on record, the respondents were entitled to acquittal and hence this is not a fit case for remand to the High Court and this Court should decide the appeals on their own merits.

6. After hearing learned senior counsel appearing for the parties, we find a lot of force in the submission of the learned counsel for the State of Kerala. By the impugned common judgment, the High Court has acquitted the 35 respondents who had been convicted in Sessions Case No. 187 of 1999 only on the basis of evidence led in Sessions Case No. 241 of 2001 after arriving at a finding that the Prosecutrix may not have been an unwilling part