JUDGMENT : K.V. JAYAKUMAR, J. 1. These appeals are preferred impugning the judgment of the learned Special Judge (Special Court for Trial of Offences under POCSO Act & Children’s Court), Kalpetta, Wayanad, dated 05.03.2021 in S.C. No.128 of 2019. Criminal Appeal No. 280 of 2021 is preferred by accused Nos.1 and 4, Criminal Appeal No. 274 of 2021 is preferred by accused Nos.2 and 3 and Criminal Appeal (V) No. 66 of 2025 is preferred by the victim. Prosecution case 2. The prosecution case in brief is that a child aged about 11 years was subjected to penetrative sexual assault by accused Nos. 1 to 3 on multiple occasions during 2017-2018. The 4th accused, Kanchana, is the mother of the 1st accused, Suresh Babu P.M. The said Kanchana had worked as a maid in the house of the survivor. The prosecution alleges that the 1st accused used to visit the house of the survivor under the guise of seeing his mother. Later, 1st accused developed intimacy with the survivor and on 04.01.2017, while the survivor was alone in her house, the 1st accused committed penetrative sexual assault on her. During that time, the 1st accused took nude photos of the survivor and subjected her to repeated sexual assault by threatening to publish the nude images. 3. The prosecution further alleges that accused Nos. 2 and 3, namely, Suresh P.M. @ Poocha Sura and Siju Poulose, who are the close associates of the 1st accused, have also committed penetrative sexual assault on the child on different dates. The Registration of FIR and the Investigation 4. PW20, Rajeena K. Jose, the Inspector of Police, recorded Ext.P1 FI Statement of PW1, the survivor, on 08.02.2019. On the basis of Ext.P1 FIS, she registered Ext.P13 FIR on that day itself. PW20 conducted the initial part of the investigation. Thereafter, PW21, Dr. Vaibhav Saxena, completed the investigation and filed the charge sheet. The proceedings before the Trial Court 5. The learned Special Judge took cognizance of the offences and framed the following charges against the accused, after hearing both sides. Charges against A1:- Sections 450 , 376DA, 376(2)(i), 376(2)(n), 376(3), 506(1) and 323 r/w 34 of IPC and Sections 5(l)(m) r/w 6, 5(g) r/w 6, 9(l)(m) r/w 10, 11(v) r/w 12 of the PoCSO Act. The learned Special Judge took cognizance of the offences and framed the following charges against the accused, after hearing both sides. Charges against A1:- Sections 450 , 376DA, 376(2)(i), 376(2)(n), 376(3), 506(1) and 323 r/w 34 of IPC and Sections 5(l)(m) r/w 6, 5(g) r/w 6, 9(l)(m) r/w 10, 11(v) r/w 12 of the PoCSO Act. Charges against A2 and A3:- 376DA, 376(3), 376(2)(n) and 323 r/w 34 of and Sections 5(l) r/w 6, 5(g) r/w 6 of PoCSO Act. Charges against A4:- Section 16 r/w 17 of the PoCSO Act. The charge was read over and explained to the accused. They pleaded not guilty and claimed to be tried. 6. Before the trial court, PWs 1 to 23 were examined, and Exts.P1 to P32 were marked. MO-1, the mobile phone of the 1st accused, has also been identified and marked. After closing the prosecution evidence, all the accused persons were questioned under Section 313(1)(b) of Cr.P.C. They denied all the incriminating circumstances that emerged against them in the prosecution evidence. All of them pleaded innocence and submitted that they had been falsely implicated in this case to screen the real culprits. 7. After hearing both sides under Section 232 of Cr.P.C., it was found that the case was not suitable for passing an order of acquittal thereunder. Thereafter, the accused were called upon to enter on their defence. On the side of the defence, DWs. 1 to 5 were examined. Exts. D1 to D5 contradictions had already been marked. Exts. D6 to D9 documents were also marked from the side of the defence. 8. The learned Special Judge, after a full-fledged trial, convicted all the accused and awarded the following sentences: 9. The learned Special Judge found accused Nos. 1 to 3 not guilty of the offences under Section 376DA of IPC and Section 5(g) r/w 6 of the PoCSO Act, and they were acquitted of these offences. 10. Impugning the judgment of the learned Special Judge, the above captioned Criminal Appeals are preferred. The submissions of the learned counsel for the appellants/accused Nos. 1 and 4 in Crl. A. No. 280 of 2021 11. Sri. I.V. Pramod, the learned counsel for the appellants, submitted that the findings of the learned Special Judge as to the guilt, conviction and sentence are wrong and legally unsustainable. The learned Special Judge ought not have convicted the appellants/accused Nos. 1 and 4 in Crl. A. No. 280 of 2021 11. Sri. I.V. Pramod, the learned counsel for the appellants, submitted that the findings of the learned Special Judge as to the guilt, conviction and sentence are wrong and legally unsustainable. The learned Special Judge ought not have convicted the appellants/accused Nos. 1 and 4 solely on the testimony of PW1, the victim. The learned counsel would submit that the evidence of PW1 is contradictory and inconsistent on material particulars. According to the learned counsel, her version is wholly unreliable. 12. The learned counsel would further submit that the victim had given three different statements: one before the police officer (PW20), yet another version before the jurisdictional Magistrate and a third version before the investigating officer. The learned counsel would point out that her version before the court is contradictory insofar as it relates to the involvement of the accused and the sequence of events. The victim had embellished her version on all material particulars. 13. The learned counsel further submitted that the survivor is a tutored witness and therefore, her version cannot form the basis for convicting the appellants without corroboration. The victim had no case that she sustained any injuries on her private parts, even though she states that she was subjected to gang rape by three persons on two occasions. The FIS was lodged after a long gap of about two years, and no plausible or satisfactory explanation is offered for the said delay. 14. The learned counsel would further point out that the non-recovery of the contents of MO1-mobile phone, in which the nude photos of the victim were allegedly taken by the 1st accused, is fatal to the prosecution story. 15. The learned Counsel would submit that the prosecution has failed to allege and prove the foundational facts and therefore, the presumption under Section 29 of the PoCSO Act ought not have been invoked by the learned Special Judge to sustain the conviction against the appellants. PW18 (Dr. Cicily Richard), who examined the victim, has not expressed a clear opinion that the child was subjected to penetrative sexual assault. 16. The learned counsel would further urge that the trial court has failed to appreciate the defence evidence adduced in this case in its correct perspective. 17. PW18 (Dr. Cicily Richard), who examined the victim, has not expressed a clear opinion that the child was subjected to penetrative sexual assault. 16. The learned counsel would further urge that the trial court has failed to appreciate the defence evidence adduced in this case in its correct perspective. 17. The learned counsel would further submit that the findings of the learned Special Judge with regard to the 4th accused, Kanchana, were completely misguided. There is nothing on record, even according to the evidence of PW1, the victim, to prove the complicity and involvement of the 4th accused in the crime. It is further submitted that no evidence is forthcoming to prove that the 4th accused had, in any manner, aided the 1st accused in the commission of the crime. Lastly, the learned counsel argued that the sentence imposed against the 1st appellant/1st accused is excessive. The contentions of the learned counsel for the appellants/accused Nos. 2 and 3 in Crl. A. No. 274 of 2021. 18. Smt. Sai Pooja, the learned counsel for the appellants, submitted that the evidence adduced by the prosecution in this case is deficient to fasten the penal liability on the appellants/accused Nos. 2 and 3. According to the learned counsel, the version of the survivor with regard to the involvement of accused Nos. 2 and 3 is false, inherently improbable, and wholly unreliable. The names of accused Nos. 2 and 3 were disclosed by the victim only after 12 days of lodging the FIS. If the victim had been subjected to gang rape, she would have stated that fact either in the FIS or in her 164 statement given before the jurisdictional Magistrate. The counsel had also advanced identical arguments as advanced by the learned counsel in Crl.A. No. 280/2021. The submissions of the learned counsel for the appellant in CRA(V) No. 66 of 2025 19. Sri. V. John Sebastian Ralph, the learned counsel for the appellant/victim, would submit that the interpretation of Section 376DA of IPC and Section 5(g) of the PoCSO Act, by the learned Special Judge, is manifestly erroneous and legally unsustainable. 20. The learned counsel would submit that the conduct of accused Nos. Sri. V. John Sebastian Ralph, the learned counsel for the appellant/victim, would submit that the interpretation of Section 376DA of IPC and Section 5(g) of the PoCSO Act, by the learned Special Judge, is manifestly erroneous and legally unsustainable. 20. The learned counsel would submit that the conduct of accused Nos. 1 to 3 squarely falls within the ambit of Section 376DA of IPC and Section 5(g) of the POCSO Act , and that they are, accordingly, liable to be convicted and sentenced under the said provisions on a strict and purposive interpretation thereof. The submissions of the learned Public Prosecutor: 21. Smt. Neema T. V., the learned senior Public Prosecutor, submitted that the prosecution has succeeded in proving the charge against the appellants/accused beyond a reasonable doubt. The learned public prosecutor further submitted that the version of PW1, the victim, is reliable, credible, and trustworthy. The learned Public Prosecutor submitted that, if the version of the prosecutrix is of sterling quality and inspires the confidence of the Court, it can form the sole basis for conviction. The learned Special Judge properly appreciated the evidence on record and arrived at a correct conclusion. Therefore, no interference whatsoever is warranted in this matter. Evidence let in by the prosecution: 22. PW1 is the victim in this case. She testified that she had resided at Bhoothanam Colony along with her father and brother during the relevant time. Her date of birth is 20.05.2005. She was a student of 9th standard in Mount Carmel Girls Higher Secondary School, Kottayam. Her mother was employed in Israel, while her father was working as a conductor in a private bus. The 4th accused, Kanchana, was their maid who also resided with them. Her father would go out for work at about 6.30 a.m. and would return in the late evening at about 8.00 p.m. During 2017, she was a student of 6th standard at St. George English Medium U.P. School, Anappara. 23. According to PW1, the first incident of sexual abuse was in January 2017, three to four days after the Christmas vacation. At that time, she was 11 years old. The 1st accused, Suresh, used to visit their house to see his mother. The first incident was at about 5.45 p.m., after she came back from school. 23. According to PW1, the first incident of sexual abuse was in January 2017, three to four days after the Christmas vacation. At that time, she was 11 years old. The 1st accused, Suresh, used to visit their house to see his mother. The first incident was at about 5.45 p.m., after she came back from school. At that time, the 1st accused came to her house, and the 4th accused took her brother to the house of a neighbour. The 1st accused kissed her face and took her to her bedroom. After removing her clothes, he kissed her and inserted his tongue in her private part. He took her nude photos. 24. The second incident was on 14.01.2017 on the second Saturday at about 3.00 p.m. At about 2.30 p.m., the 4th accused took her younger brother outside. After some time, the 1st accused came to the house and asked her to remove her clothes. After showing her nude photos, he threatened that if she did not give consent, he would leak the photos. Thereafter, the 1st accused inserted his penis into her vagina after removing her clothes. The 1st accused committed such sexual assault on several occasions and threatened her not to divulge the matter to anyone. Due to the fear of leakage of her nude photos, she did not disclose the matter to anyone. She identified the 1st accused in the dock. 25. The next incident was in August 2018, on a Wednesday, at about 5.45 p.m. On that day, Accused Nos. 1 to 3 came to her house through the back door and knocked on the door. When she opened the door, the 1st accused saw her brother. As directed by the 1st accused, her brother went out to play. Thereafter, the 1st accused threatened to leak the nude photographs and asked her to consent to sexual intercourse with all the three persons. When she disagreed, the 1st accused made repeated threats of leaking out the nude photos. Thereafter, the 1st accused raped her by inserting his genital organ into her private part. Thereafter, the 2nd accused, Poocha Sura, entered the room, but when she refused, the 2nd accused beat her. He also committed penetrative sexual assault by inserting his genital organ into her vagina. The 3rd accused also did the same acts. 26. After two weeks, accused Nos. Thereafter, the 2nd accused, Poocha Sura, entered the room, but when she refused, the 2nd accused beat her. He also committed penetrative sexual assault by inserting his genital organ into her vagina. The 3rd accused also did the same acts. 26. After two weeks, accused Nos. 1 to 3 came to her house at about 6 p.m. and repeated the sexual assault. The fifth incident occurred at about 6.00 p.m. on a Saturday falling after 10.12.2018. As directed by the 1st accused, the brother was sent to the neighbouring house. On that day, accused Nos. 1 and 2 had committed penetrative sexual assault on her. After one week, accused Nos. 1 and 2 again came to her house, and she was subjected to rape by them. The final incident of sexual abuse was in January 2019. On that day, the 2nd accused alone committed penetrative sexual assault on her. When she cried, he pressed on her neck. 27. According to PW1, she was blackmailed by the accused and was put in fear of the leakage of her nude photos. She divulged about the incident to Shiji teacher and Leema teacher (PW10) of St. Catherine English School, Payyambally. Since she had continuous vomiting, the doctor advised her to go for counselling. On 06.02.2019, she disclosed the incident to her teachers. At that time, she only spoke about the 1st accused. Since the 2nd accused used to hurt her, she did not divulge his name due to fear. The name of Siju, the 3rd accused, was not mentioned because if his name is disclosed, she would be constrained to disclose the name of the 2nd accused, Poocha Sura, also. 28. PW1 further deposed that thereafter, the Child Line workers came to her school and questioned her. At that time, she disclosed the name of the 1st accused, Suresh Babu, only. Subsequently, the Police came to her house and recorded her FIS (Ext.P1), wherein she also stated the name of the 1st accused. In Ext.P2, 164 statement also, she spoke about the name of the 1st accused. She further testified that during the investigation, the accused Nos. 1 to 3 were shown to her by the police. The behaviour of the 4th accused towards her was not good. The 4th accused used to call an unknown person and ask her to talk about sexual matters to them. She further testified that during the investigation, the accused Nos. 1 to 3 were shown to her by the police. The behaviour of the 4th accused towards her was not good. The 4th accused used to call an unknown person and ask her to talk about sexual matters to them. PW1 would further say that the 4th accused assisted in the commission of the crime while the 1st accused came to her house. 29. During cross-examination, PW1 would say that she used to send his brother to the house of one Poovathinkal Sherly, while the accused came to her house. Her mother used to call her almost on all days from Israel. She added that she had no difficulty informing the mother about the incident. She used to have open talks with the 4th accused, the maid. She further stated that her mother has two younger sisters. One of the sisters, named Raji, is working in Qatar. She frequently visited their house. Her other aunt (Shiji) resided in her house for about one year from May 2017. She further stated that she was a Student Police Cadet in her school. The 1st accused, Suresh, is married and has three children. 30. She further stated that she mentioned in her 161 statement that the 1st accused took her nude photo. She has nothing to say if the Police did not record the said fact. But she would add that she had not seen the capturing of the photo. It was later shown to her by the 1st accused. She has not noted the relevant dates of occurrence anywhere. She further deposed that she had stated the date of counselling given by the teacher to the Police. She added that some of the facts were not disclosed to the Police due to the fear of the 2nd accused, Poocha Sura. She gave Ext. P1 statement to the Police after looking at the Calendar. She does not remember what she stated to the Doctor. She would further state that she stated to the Police that the 1st accused asked her to submit herself to the other accused also and threatened her to publish the nude photo. She has stated before the Police that she was subjected to gang rape by all three accused persons on two occasions. She would further state that she stated to the Police that the 1st accused asked her to submit herself to the other accused also and threatened her to publish the nude photo. She has stated before the Police that she was subjected to gang rape by all three accused persons on two occasions. So also, she stated to the police that when she cried during the incident, the 2nd accused pressed her neck. She told the Police that the 2nd accused physically tortured her. 31. On being cross-examined by the counsel for the 3rd accused, she would say that she stated the name of the 3rd accused in her last statement. She does not remember whether she divulged the name of the 3rd accused in the second counselling. 32. PW1 was subjected to a thorough cross-examination by the counsel for the 4th accused. During cross-examination, she would say that the 4th accused, Kanchana, was present in the house while the 1st accused sexually abused her. She mentioned the said fact in the previous statement to the Police. She has also stated to the Police that the behaviour of the 4th accused was bad. She stated to the Police that she could not understand that while the 1st accused reached her house, the 4th accused left the house in order to assist the accused No.1. She has nothing to say if those facts were not seen recorded in her previous statement. In her evidence, she would say that the 4th accused did not threaten her. However, she stated to the Police that the 4th accused threatened her. 33. PW2 (Lilly Thomas) is a Child Line team member who was deputed by the Coordinator of the Child Line team (PW19) to enquire with PW1 and to collect details regarding the sexual assault. On 07.02.2019, PW2 interacted with PW1, and she disclosed that the 4th accused was their maid, since 2016 and her son, Suresh, used to come to that house and sexually assault her at that time. PW2 informed the matter to the Coordinator. 34. PW3 is the father of the victim. He stated that his wife is working in Israel. He is a Bus Conductor by profession. He would go to his work at 6.30 a.m. and come back at around 7.30 p.m. He engaged the 4th accused as a maid servant in July 2016. PW2 informed the matter to the Coordinator. 34. PW3 is the father of the victim. He stated that his wife is working in Israel. He is a Bus Conductor by profession. He would go to his work at 6.30 a.m. and come back at around 7.30 p.m. He engaged the 4th accused as a maid servant in July 2016. She continued to work as such in their house till the mid January 2017. According to him, he came to know about the incident when PW10, Leema Teacher, informed him. 35. In cross-examination, he would say that Shiji, the sister of his wife, had resided in his house for about one year from May 2017, along with her 6-year-old child. He has not stated to the Police that he came to know about the incident as informed by Leema Teacher (PW10). He admitted that he is an accused in Crime No. 504/2019 of Manathavady Police Station wherein, the allegation was that he attacked the 3rd accused (Siju). According to him, it is a false case lodged by the 3rd accused. 36. PW4 (Dr. Anjusha E.V.) was the Assistant Surgeon of the Community Health Centre, Pulpally. On 24.02.2019, she examined the 3rd accused and issued Ext.P3 potency certificate. PW5 (Dr. Athul C. Soman) was the Assistant Surgeon of the Community Health Centre, Pulpally. On 23.02.2019, he examined the 2nd accused and issued Ext. P4 potency certificate. PW6 (Dr. Joby Joseph) was also the Assistant Surgeon of the Community Health Centre, Pulpally. On 09.02.2019, PW6 examined the 1st accused and issued Ext.P5 potency certificate. 37. PW7 (Shini) was a team member of Child Line. On 20.02.2019, she interacted with the victim. According to PW7, the victim told her that the 1st accused, Suresh Babu P.M., and two other friends sexually abused her. The victim has stated the name of the 2nd accused, Poocha Sura, also. 38. PW8 (Prasad) was the Civil Police Officer of Pulpally Police Station, who is an attestor to Ext.P6 seizure mahazar for MO1 mobile phone from the custody of the 1st accused. He identified the accused. PW9 (Ajeesh P.U.) is the witness to Ext.P7 scene mahzhar. 39. PW10 (Leema Rose M.M.) was a High School Teacher of St. Catherine Higher Secondary School, Payyampally. She was the class teacher of PW1, the victim. He identified the accused. PW9 (Ajeesh P.U.) is the witness to Ext.P7 scene mahzhar. 39. PW10 (Leema Rose M.M.) was a High School Teacher of St. Catherine Higher Secondary School, Payyampally. She was the class teacher of PW1, the victim. According to PW10, PW1 appeared to be gloomy in the classroom and often she was having recurring giddiness and vomiting. She was taken to the hospital by her on two occasions. It was at that time, she and one Shiji teacher made enquiries with the child, and the victim stated that the 1st accused, Suresh, sexually abused her after taking her nude photos. She informed the matter to the father of the child and to the Headmaster. 40. On being cross examined, she deposed that she stated in her previous statement to the Police that the victim told her that the 1st accused, Suresh, sexually exploited her after taking a naked photo. 41. PW11 (Peter Kuruvila) was the Headmaster of St. Catherine High School, Payyampally. He testified that he came to know about the incident as informed by PW10, Leema. He contacted the Child Line workers and informed them of the matter. The Child Line workers came to school and recorded the statements of the victim twice in the month of February, 2019. 42. PW12 (Suryakumar T.P.) is the photographer who captured the photographs of the victim from her house. PW13 (Suresh Babu P.M.) has produced the photographs of the victim taken by PW12 before the Investigating Officer. 43. PW15 (B. Vinayakumar) is the Secretary, Ambalavayal Grama Panchayat, who produced Ext.P9 birth certificate of the victim whereby her date of birth is 20.05.2005. PW16 (Abdulla V.M.) is the Secretary of Pulpally Grama Panchayath who produced Ext. P10 ownership certificate of the house of the victim. PW17 (Paul P.J.) is the Village Officer who prepared Ext.P11 site plan. 44. PW18 (Dr. Cicily Richard), who examined the victim on 09.02.2019 at 3.30 p.m. and issued Ext.P12 Victim Examination Report. She has narrated the history, as spoken to by the victim. She noted that the child told her that one Suresh (A1) had sexual intercourse with her on several occasions, while she was a student in the 6th standard. The said Suresh used to kiss her and hold her front portion. The last incident was after the New Year of 2019. She noted that the child told her that one Suresh (A1) had sexual intercourse with her on several occasions, while she was a student in the 6th standard. The said Suresh used to kiss her and hold her front portion. The last incident was after the New Year of 2019. The victim told her that the 1st accused was blackmailing and threatening her by showing a photo. Her conclusion in Ext.P12 certificate was that “on examination hymen absent, sexual intercourse might have occurred. No injuries noted.” 45. PW19 (Majesh Raman) was the Child Line Coordinator who had sent his team members to the school where the victim studied. According to PW19, on 07.02.2019, Lilly Thomas (PW2) interacted with the victim and reported the matter to him. In turn, he informed the matter to the Police. Again, he had sent Shini (PW7) to the school to interact with the child on 26.02.2019, as the teachers informed him that the child could not concentrate on her studies. 46. In cross-examination, he would state that Child Line is a project run by the NGO. He has sent his team members not for counselling. However, in his previous statement, it is recorded that on 20.02.2019, Child Line team member, Shini, reached the school to give counselling to the victim. Ext.D4 is the case dairy contradiction of this witness. 47. PW20 (Rajeena K. Jose) conducted the major part of the investigation. She recorded Ext.P1 FIS on 08.02.2019 at 7.30 p.m. Thereafter, she registered Ext. P13 FIR. She arrested the 1st accused on 10.02.2019, after preparing Ext.P14 arrest cum inspection memo. She seized MO1 (Lenovo Mobile Phone) from the 1st accused as per Ext.P6 seizure mahazar. She visited the place of occurrence and prepared Ext.P7 scene mahazar. 48. On 20.02.2019, she got a letter from the Child Line stating that the victim was subjected to sexual assault by more than one person. Thereafter, she again recorded the statement of the victim on 21.02.2019. The 2nd accused was arrested on 23.02.2019 after preparing Ext.P17 arrest cum inspection memo. Thereafter, she submitted Ext.P19 Report stating the name and address of the 2nd accused. Subsequently, she arrested the 3rd accused on 24.02.2019 itself. The MO1 mobile phone was forwarded for scientific examination. 49. PW20 was subjected to severe cross-examination. In cross-examination, she admitted that there was a correction in Ext.P1 FIS in the place where the date is mentioned. Thereafter, she submitted Ext.P19 Report stating the name and address of the 2nd accused. Subsequently, she arrested the 3rd accused on 24.02.2019 itself. The MO1 mobile phone was forwarded for scientific examination. 49. PW20 was subjected to severe cross-examination. In cross-examination, she admitted that there was a correction in Ext.P1 FIS in the place where the date is mentioned. MO1 mobile phone was not packed, sealed and labelled by her at the time of seizure. The omissions in the evidence of PW1, were put to her and proved through her. 50. PW21 (Dr. Vaibhava Saxena) is the Assistant Superintendent of Police, Manthavady, who laid the chargesheet. PW22 (K.M. Devasia), the DYSP of Police, has also conducted a piece of investigation. The Defence version. 51. On the side of the defence, DWs. 1 to 5 were examined and Exts. D1 to D9 were marked. DW1 (Asraf K.P.) was the Senior Civil Police Officer of Mananthavady Police Station. He was examined to prove that Crime No. 504/2019 was registered by him against the father of the victim (PW3). Ext.D6 FIR was also marked through him. 52. DW2 (Jibin Joseph) was the manager of S.J. Traders, Mananthavady. He was examined to prove the plea of alibi of the 2nd accused. He produced Exts. D7 and D8 Attendance Registers to prove that during 2018-2019, the 2nd accused was present in the office from 9.00 a.m. to 8.30 p.m. In cross-examination, he would admit that Exts. D7 and D8 documents do not have the seal of the firm. 53. DW3 (Shiji V.R.) is the younger sister of the mother of the victim. She was examined to prove that the 4th accused, Kanchana, left the house of the victim in January 2017. The attempt of the defence was to show that the 4th accused, Kanchana, quit the job before the relevant period, and she never aided the commission of the offence. 54. DW4 (Meera Joseph) was the Casualty Medical Officer of District Hospital, Mananthavady. She produced Ext.D9 wound certificate of the 3rd accused, Siju. She examined Siju on 21.02.2019. She has noted the following injuries in Ext.D9. i. A lacerated wound over the right eye marking 3 x 1 c.m. ii. Lacerated wound over head 2x1 cm. iii. Contusion around the Right eye. iv. Abrasion in the upper part of chest. v. Contusion over the Right Chest, Left knee and back with tenderness. 55. She examined Siju on 21.02.2019. She has noted the following injuries in Ext.D9. i. A lacerated wound over the right eye marking 3 x 1 c.m. ii. Lacerated wound over head 2x1 cm. iii. Contusion around the Right eye. iv. Abrasion in the upper part of chest. v. Contusion over the Right Chest, Left knee and back with tenderness. 55. DW5 (Jacob) is a driver by profession. He was examined to prove the plea of alibi of the 2nd accused, Suresh @ Poocha Sura. He would say that from June 2018 to December 2018, the 2nd accused resided in his house. During that period, he left the house only three to four occasions. Judicial Evaluation of Evidence 56. The first submission by the learned counsel for the appellants is that there is a delay of about two years in lodging the FIS. According to the learned counsels, the unexplained delay of about two years is fatal to the prosecution story. Sri. V. John Sebastian Ralph, the learned counsel for the victim and Smt. Neema T.V., the learned Public Prosecutor, would submit that much weight cannot be attached to the delay caused in lodging FIS in sexual offences. 57. In State of Punjab v. Gurmit Singh & Ors. (1996) 2 SCC 384 , the Apex Court held that the Courts cannot overlook the fact that in sexual offences delay in lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the Police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged. 58. In Tulshidas Kanolkar v. State of Goa, (2003) 8 SCC 590 , the Apex Court held that the delay in lodging the First Information Report stood satisfactorily explained by the unusual circumstances of the case; moreover, delay per se does not constitute a mitigating circumstance for the accused where allegations of rape are involved. The relevant paragraph of Tulshidas Kanolkar (supra) reads as follows: “5. We shall first deal with the question of delay. The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. The relevant paragraph of Tulshidas Kanolkar (supra) reads as follows: “5. We shall first deal with the question of delay. The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging the first information report cannot be used as a ritualistic formula for discarding the prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the court is to only see whether it is satisfactory or not. In case if the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand, satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of the prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen her. That being so, the mere delay in lodging of the first information report does not in any way render the prosecution version brittle.” 59. In Deepak v. State of Haryana, 2015 (4) SCC 762 , the Apex Court, placing reliance on Gurmit Singh (Supra), observed that in sexual offences and, in particular, the offence of rape and that too on a young illiterate girl, the delay in lodging the FIR can occur due to various reasons. One of the reasons is the reluctance of the prosecutrix or her family members to go to the police station and to make a complaint about the incident, which concerns the reputation of the prosecutrix and the honour of the entire family. In such cases, after giving very cool thought and considering all pros and cons arising out of an unfortunate incident, a complaint of sexual offence is generally lodged either by victim or by any member of her family. 60. In Lok Mal v. State of U.P., (2025) 4 SCC 470 , the Apex Court observed that the delay in lodging the FIR was sufficiently explained by the threats extended by the appellant and the pressure exerted by local persons, and therefore, such delay was not fatal to the prosecution case. 61. 60. In Lok Mal v. State of U.P., (2025) 4 SCC 470 , the Apex Court observed that the delay in lodging the FIR was sufficiently explained by the threats extended by the appellant and the pressure exerted by local persons, and therefore, such delay was not fatal to the prosecution case. 61. In the instant case, the first incident was in January 2017, and the FIS was lodged on 08.02.2019. The explanation offered by the victim was that she was threatened and blackmailed by showing her nude photos captured in MO1, mobile phone. According to PW1, the victim, she was persuaded to give consent for penetrative sexual assault by being put in fear of the leakage and publication of the nude photographs. The explanation offered by the victim appears to be natural and plausible. In view of the dictum laid down in the above-mentioned cases, we are of the view that the delay of above two years in lodging FIS cannot be considered fatal to the prosecution case. Moreover, it is pertinent to note that the victim was subjected to repeated penetrative sexual assaults on different occasions for a prolonged period. 62. The learned counsel for the appellants argued that the non-recovery of the contents of the mobile phone is a vital link to connect the accused to the crime. Therefore, the non-recovery of the contents of the mobile phone casts serious doubts on the veracity of the prosecution case. We are unable to accept the said contention. The victim girl gave categoric evidence about the sexual assault to which she was subjected. In such circumstances, the non-recovery of the contents of MO1 mobile phone does not assume much significance. 63. The learned counsel argued that the trial court ought not have invoked the presumption under Section 29 of the PoCSO Act, as the foundational facts were not proved by the prosecution. According to PW1, she was a student of 6th standard during the relevant period. Her date of birth is 20.05.2005. PW15 (B. Vinayakumar) produced Ext.P9 birth certificate of the victim. No serious disputes were raised by the accused/appellants with regard to the age of the victim. On a perusal of the evidence, we are of the view that, the trial court rightly held that the foundational aspects were proved, and applied the presumption against the accused. 64. PW15 (B. Vinayakumar) produced Ext.P9 birth certificate of the victim. No serious disputes were raised by the accused/appellants with regard to the age of the victim. On a perusal of the evidence, we are of the view that, the trial court rightly held that the foundational aspects were proved, and applied the presumption against the accused. 64. The next contention advanced by the learned counsel for the appellants is that the testimony of the victim is wholly unreliable, unnatural and unworthy of credence. The trial court ought not have convicted the accused on the basis of the uncorroborated testimony of the victim. The counsels would point out that the medical evidence adduced by PW18 (Dr. Cicily Richard) is inconsistent with the testimony of the victim. Dr. Cicily Richard did not express a clear and categoric opinion about the alleged penetrative sexual assault. 65. The learned counsel for the appellant in Crl.A. No. 280/2021 argued that no evidence is forthcoming to prove the involvement of accused Nos. 1 and 4 in the crime. According to the learned counsel, no witness spoke about the role of the 4th accused, Kanchana, in the crime. 66. The learned counsel for the appellant in Crl. A. No. 274/2021 would submit that the version of PW1, insofar as the involvement of accused Nos. 2 and 3 is concerned, is exaggerated, embellished and cannot form a basis to sustain conviction against them. 67. We have carefully evaluated the evidence let in by the prosecution particularly that of PW1, the victim and PW18, Dr. Cicily Richard. According to PW1, the first incident of sexual assault was in January 2017, while she was a student of 6th standard. According to the victim, during that relevant period she resided at her house at Bhoothanam Colony along with her father, her younger brother and the 4th accused, Kanchana. Her mother was working in Israel. She has narrated, as many as, 8 incidents during 2017 and 2018. PW1 gave evidence to the tune that the 1st accused took her nude photo during the first incident, and threatened her to heed to the subsequent requests showing her nude photos. Even according to PW1, the alleged penetrative sexual assault and gang rape by accused Nos. 1 to 3 was in August 2018 and thereafter. The final incident was in January 2019, wherein the 2nd accused alone committed penetrative sexual assault. 68. Even according to PW1, the alleged penetrative sexual assault and gang rape by accused Nos. 1 to 3 was in August 2018 and thereafter. The final incident was in January 2019, wherein the 2nd accused alone committed penetrative sexual assault. 68. On 06.02.2019, she disclosed the matter to her teachers, Shiji and Leema (PW10). On that day, she mentioned the name of the 1st accused only. PW1 gave evidence before the Child Line workers that she had disclosed only the name of the 1st accused. In Ext.P1 FIS, Ext.P2 164 statement and in her first 161 statement, she spoke about the role of the 1st accused. 69. PW1, in her evidence, stated that she spoke about the capturing of nude photos by the 1st accused, the role of accused Nos. 2 and 3, and about the alleged threatening and blackmailing her by showing the nude photos. But such a version was not seen recorded in her previous statement. She would also state that she does not remember what she stated to the Doctor, who examined her. The victim was examined by Dr. Cicily Richard on 09.02.2019. The Doctor has noted the absence of hymen. But due to the lapse of long gap, she could not find a clear-cut opinion as to the alleged sexual assault. Therefore, she has noted in Ext.P12 Victim Examination Report that hymen was absent and that sexual intercourse might have occurred. She has not found any injuries on the private part of the victim. 70. PW20, the Investigating Officer, would say that she recorded Ext.P1 FIS on 08.02.2019. In Ext.P1 FIS, the victim spoke only about the role of the 1st accused. However, on 20.02.2019, on the basis of a letter obtained from the Child Line stating that the victim was subjected to sexual assault by more than one persons, PW20 again recorded the statement of PW1 on 21.02.2019. 71. On going through the evidence of PW1 and PW20, it is clear that the names of accused Nos. 2 and 3 were brought to the light only on 21.02.2019, when the subsequent statement was recorded. In Ext. P1 FIS, there was no mention about the alleged gang rape nor the names and role of accused Nos. 2 and 3. The reason for the non-mentioning of the names of accused Nos. 2 and 3 were brought to the light only on 21.02.2019, when the subsequent statement was recorded. In Ext. P1 FIS, there was no mention about the alleged gang rape nor the names and role of accused Nos. 2 and 3. The reason for the non-mentioning of the names of accused Nos. 2 and 3 and the alleged gang rape was that the victim was afraid of the 2nd accused who caused physical torture to her. 72. The non-disclosure of the names of the accused Nos. 2 and 3 in her previous statement casts serious doubts in the prosecution case. It is pertinent to note that the letter allegedly sent by the counsellors showing that the victim was subjected to rape by more than one persons was not produced and tendered in evidence by the prosecution. 73. On a meticulous evaluation of the evidence on record, we are of the view that the evidence of PW1, the victim, is partially reliable, insofar as it relates to the involvement of the 1st accused. However, considering her exaggerated, embellished and improved version as against accused Nos. 2 and 3, we are of the view that the role of accused Nos. 2 and 3 in the alleged sexual assault is not proved by the prosecution. 74. Yet another argument advanced by the learned counsels was that the learned Special Judge has discarded the defence evidence in toto. The defence witnesses have been examined, mainly, to prove their plea of alibi. We have carefully gone through the evidence adduced and perused the records and therefore, we are of the view that, the learned Special Judge evaluated the defence evidence and rightly rejected their plea of alibi. We are unable to find any reason to disagree with the conclusion arrived at by the learned Special Judge on this point. 75. Now, we shall proceed to examine whether the prosecution has succeeded in proving the charge against the 4th accused. The trial court convicted the 4th accused, considering that she facilitated and aided the 1st accused in house trespass and the commission of the crime. The learned Special Judge held that if the 4th accused had taken due care to look after the children, the crime could have been avoided. The trial court convicted the 4th accused, considering that she facilitated and aided the 1st accused in house trespass and the commission of the crime. The learned Special Judge held that if the 4th accused had taken due care to look after the children, the crime could have been avoided. The trial court was of the view that Section 16 of the PoCSO Act can be invoked for intentional aiding or by illegal omission amounting to the abetment of the offence. The learned Special Judge was of the view that there was an illegal omission to take care of PW1 by the 4th accused. 76. Before we proceed to evaluate the evidence against the 4th accused, it would be profitable to extract Section 16 of the PoCSO Act. “16. Abetment of an offence. —A person abets an offence, who— First.—Instigates any person to do that offence; or Secondly.— Engages with one or more other person or persons in any conspiracy for the doing of that offence, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that offence; or Thirdly.—Intentionally aids, by any act or illegal omission, the doing of that offence. Explanation I.—A person who, by wilful misrepresentation, or by wilful concealment of a material fact, which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure a thing to be done, is said to instigate the doing of that offence. Explanation II.—Whoever, either prior to or at the time of commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act. Explanation III.—Whoever employ, harbours, receives or transports a child, by means of threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or of a position, vulnerability or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of any offence under this Act, is said to aid the doing of that act.” 77. In the instant case, the learned Special Judge convicted the 4th accused, invoking the second limb of clause thirdly, i.e. illegal omission on her part to take care. In the instant case, the learned Special Judge convicted the 4th accused, invoking the second limb of clause thirdly, i.e. illegal omission on her part to take care. In order to attract the clause ‘thirdly’, there should be intentional acts or omissions by the accused for the commission of the offence by the main accused. 78. On a meticulous evaluation of evidence of PW1, it is not clear that the 4th accused has aided or assisted intentionally or that there was an intentional omission on her part, facilitating the commission of the offence by the main accused. 79. Considering the evidence, facts and circumstances of this case, we are of the view that the learned Special Judge is not justified in convicting accused Nos. 2, 3 and 4. The evidence adduced by the prosecution, is deficient to fasten penal liability to accused Nos. 2, 3 and 4. However, we find that the evidence on record is sufficient to convict the 1st accused. Suspicion, however strong it may be, cannot substitute proof. In view of our findings, the appeal filed by the victim seeking conviction under Section 376DA IPC and Section 5(g) of the POCSO Act fails and is liable to be dismissed. 80. In Renuka Prasad v. State Represented by Assistant Superintendent of Police,  2025 KHC OnLine 6458, the Apex Court held that a conviction cannot be upheld on the basis of presumptions or moral considerations in the absence of legally admissible evidence; relying on such grounds amounts to a complete departure from established principles of criminal jurisprudence. A conviction must rest on valid legal evidence, whether direct or circumstantial, which clearly establishes the guilt of the accused. The relevant portion of the judgment is extracted hereunder: “We cannot but say that the High Court has egregiously erred in convicting the accused on the evidence led and has jumped into presumptions and assumptions based on the story scripted by the prosecution without any legal evidence being available. Truth is always a chimera and the illusion surrounding it can only be removed by valid evidence led, either direct or indirect, and in the event of it being circumstantial, providing a chain of circumstances with connecting links leading to the conclusion of the guilt of the accused and only the guilt of the accused, without leaving any reasonable doubt for any hypothesis of innocence. We can only accede to and share the consternation of the Division Bench of the High Court, which borders on desperation, due to the futility of the entire exercise. That is an occupational hazard, every judge should learn to live with, which cannot be a motivation to tread the path of righteousness and convict those accused somehow, even when there is a total absence of legal evidence; to enter into a purely moral conviction, total anathema to criminal jurisprudence. With a heavy heart for the unsolved crime, but with absolutely no misgivings on the issue of lack of evidence, against the accused arrayed, we acquit the accused reversing the judgment of the High Court and restoring that of the Trial Court.” 81. Now, we shall proceed to consider the question of sentence. The learned counsel for the appellants would argue that the sentence of imprisonment for life, that is, the remainder of his natural life, awarded is too harsh and excessive. We are not inclined to accept the said argument. In the instant case, it is proved that a girl aged 11 years was subjected to repeated penetrative sexual assault by the 1st accused, after putting her in fear of the leakage of nude photos. Considering the gravity of the offence, we are of the opinion that the sentence awarded by the trial court against the 1st accused is not excessive or harsh. 82. In the light of the above discussion, we are of the considered opinion that the trial court is not justified in convicting accused Nos. 2, 3 and 4. However, we are of the firm view that there is sufficient evidence on record as against the 1st accused. In the result, i. Crl. A. No. 280 of 2021 is allowed in part. The conviction and the sentence imposed as against accused No.1 is confirmed. Accused No. 4 is acquitted for all the charges levelled against her and she is set at liberty forthwith, if her custody is not required for any other case. ii. Crl. A. No. 274 of 2021 is allowed. The appellants/ accused Nos. 2 and 3 are acquitted and they are set at liberty forthwith, if their custody is not required for any other case. iii. CRA (V) No. 66 of 2025 is dismissed.