JUDGMENT

This Criminal Appeal has been filed to set aside the judgement and order in S.C.No.43 of 2013 dated 21.01.2015 on the file of the learned Sessions Judge, Magaleer Neethimandram (Fast Track Court), Tiruvarur.

2. The case of the prosecution is that on 25.01.2010, the respondent police has registered a complaint given by a minor girl, who is studying X Standard at Kovilur Arulmigu Periyanayagi Girls Higher Secondary School, Muthupettai, alleging that on 24.01.2010 mid night, while she was studying in her house and her mother and sisters were sleeping, she went out to answer the nature's call. At that time, the accused/Gopi and three other unidentifiable persons, who were masked their face, gang raped her and thrown her under the bullock cart, which is parked in between the house of Pakiri and Jayaraman. She lost her conscious and when she regained, she found her dress badly disarranged and wet. Thereafter slowly, she reached her house and fainted before entering the house. The complaint was lodged at 13:00 hours on

25.01.2010. While lodging the complaint, the victim girl had also handed over her dress, which she was wearing at the time of alleged occurrence. The first respondent police registered a case under Section 376 IPC against the appellant/Gopi and three others. The investigation disclosed that the prosecutrix, who was about 15 years old, was forcibly raped by the first accused/Gopi. The other three accused kidnapped her to have illicit intercourse with first accused. Hence the final report has been filed.

3. The trial Court on perusing the records, framed charge under Section 376 IPC against the first accused and under Section 366A against the accused 2, 3 and 4.

4. To prove these charges, the prosecution has examined the victim as PW1. To show that the victim was minor at the time of occurrence, Ex.P3/Age certificate given by the Doctor based on radiological examination and Ex.P12/the school transfer certificate of the victim girl issued by her school were relied. To corroborate the case of the victim girl, the testimony of PW2/father of victim, PW3/mother of the victim and PW4/sister of the victim were examined, besides, Doctors have given their opinion on examining the victim girl as well as accused.

5. Considering the testimony of PW1 to PW15, documents marked as Ex.P1 to Ex.P12 and material objects marked as M.O.1 and M.O.2, the trial Court held that the opinion of the forensic expert/PW8, who has examined the cloth of the victim girl at the time of occurrence, which was marked as M.O.1 (in skirt), found semen and it is of human origin. Therefore the trial Court concluded that A1 alone found guilty of having sexual intercourse with PW1. As far as A2, A3 and A4 are concerned, the charge against them has not been proved since PW1 has not identified them either at the time of occurrence or during her previous statement or no identification parade was conducted in the course of investigation to substantiate the charge against these three accused.

6. The trial Court also finds that the accused and PW1 were in affairs and the intercourse was consensual. However, taking note of her age, the Court below convicted the accused for the offences under Section 376 IPC and sentenced him to undergo three years rigorous imprisonment and to pay a fine of Rs.1,000/-, in default to undergo six months rigorous imprisonment. The said judgement is challenged in the present appeal.

7. The brief facts of the prosecution case, as found from the evidence, is that on 25.01.2010 at about 13:00 hours, when PW12/Sub Inspector of Police attached to Mannargudi Police Station was on duty, PW1 came to the police station and gave complaint/Ex.P1 alleging that the previous night, she was gang raped, while she came out from the house to attend her nature's call. She identified one of the assailants, who is the appellant herein. Based on the complaint/Ex.P1, PW12 has registered the FIR/Ex.P10 and submitted it to the Inspector of Police for further inve