JUDGMENT - GAIKWAD P.B., J.:---Original accused Nos. 1 and 2 Balaji @ Ganu s/o. Sakharam Mundhe and Keshav s/o. Dhondiba Kharate filed the present appeal challenging the order passed by the ad hoc Additional Sessions Judge, Osmanabad, in Sessions Case No. 10/2002 dated 8-5-2003 convicting the present appellants for the offence punishable under section 376(2)(g) of I.P.C. and directing them to suffer R.I. for 7 years and to pay fine of Rs. 2,000/- by each of them, in default R.I. for six months. 2. The facts, in brief, leading to the present appeal are that: Prosecutrix Kum. Kavita along with her parents, three brothers used to work at a brick kiln belonging to father of present appellant No. 1 namely Sakharam Mundhe resident of village Govindpur. All the family members of the prosecutrix used to work on the brick kiln as labours. The location of the said brick kiln is on the western side of Dhoki-Kallam Road. Sakharam Mundhe has constructed near about 7 rooms at the site of brick kiln for the residence of labourers. At the relevant time, in one room the family members of prosecutrix were residing while in one adjacent room one another labour alongwith his wife and children was residing. Remaining 5 rooms were vacant. It is further alleged that on the said brick kiln there is office of Sakharam Mundhe and some times present appellant No. 1 used to sit in that office so as to supervise the work going on at the brick kiln. Accused No. 2 is related to accused No. 1 and it is alleged that he is the brother of accused No. 1 from maternal side. Village Govindpur is hardly at a distance of about half km from the road which leads from Dhoki to Kallam. The brick kiln belonging to Sakharam Mundhe is located in his own land. Adjacent to the said brick kiln, there is a Well and on the western side of the well there is a Nala or stream which again runs in South North direction. 3. The alleged incident took place on 24-5-2002. On that day, parents of prosecutrix Kavita had gone to their native place i.e. Andora to see Ganpat Londhe the grand father of prosecutrix, who was ill. Only prosecutrix and her three brothers were at the residence i.e. in a room constructed by the side of brick kiln. 3. The alleged incident took place on 24-5-2002. On that day, parents of prosecutrix Kavita had gone to their native place i.e. Andora to see Ganpat Londhe the grand father of prosecutrix, who was ill. Only prosecutrix and her three brothers were at the residence i.e. in a room constructed by the side of brick kiln. The prosecutrix and her three brothers took meals at about 9.00 p.m. and all of them slept in front of the said room. It is alleged that approximately at about 11.00 p.m. she realised that somebody is lifting her and thereafter she came to know that the present accused Nos. 1 and 2 started lifting her. Her mouth was gagged. She was taken by the side of the Well and thereafter she was brought between the stream and the Well. Accused No. 2 Keshav Kharate thereafter pressed her neck due to which she sustained injury. She tried to rescue herself from the clutches of the accused and in this attempt, she fell down and accordingly sustained injury to her knee. Accused Nos. 1 and 2 again caught hold the prosecutrix. Accused No. 2 Keshav caught hold her hand. Accused No. 1 removed her salwar and nicker and committed rape on her. Thereafter both the accused left the place. The prosecutrix then came to her room near brick kiln. She then got up her two brothers Hanuman and Samadhan and informed them in respect of the said incident. She also informed in respect of the same to the neighbour who also got up at that time. The neighbour, however, advised her that we would see what is to be done after return of her parents. On the next day i.e. on 25-5-2002, her parents returned from village Andora. The prosecutrix then informed in respect of the said incident to them. However, as the condition of Ganpat Londhe-grand father of prosecutrix being serious at that time, father of prosecutrix informed them that all of them have to go to Andora on account of ill health of Ganpat Londhe. Therefore, he took all of them i.e. his three sons and prosecutrix to village Andora. However, as the condition of Ganpat Londhe-grand father of prosecutrix being serious at that time, father of prosecutrix informed them that all of them have to go to Andora on account of ill health of Ganpat Londhe. Therefore, he took all of them i.e. his three sons and prosecutrix to village Andora. The evidence shows that within three days thereafter Ganpat Londhe died and thereafter the prosecutrix, on 2-6-2002 made a report to the Police Station Shiradhon on the basis of which crime is registered for the offence under sections 376(2)(g), 506 read with 34 of I.P.C. and as the prosecutrix belongs to Scheduled Caste, crime was also registered for the offence punishable under section 3(1)(x) of the Scheduled Castes Scheduled Tribes (Prevention of Atrocities) Act, 1989. Initially the investigation was with the P.I. However, the Sub-Divisional Police Officer took up the investigation of the said crime, recorded statements of certain witnesses, visited place of incident, prepared spot panchnama, referred the prosecutrix for medical examination to Civil Hospital, Osmanabad. Then he made an attempt to arrest the present accused. However, it is alleged that the accused were absconding and the police authorities succeeded in arresting the accused only on 29-7-2002. After arrest, accused No. 1 was referred to Medical Officer, Osmanabad for medical examination. During the course of investigation, clothes, which were on the person of prosecutrix at the relevant time of incident i.e. salwar and nicker (Jangya) were attached and equally the clothes on the person of present accused No. 1 Balaji were also attached under panchnama, after his arrest. The Medical Officer was requested to ascertain the age of prosecutrix and also to give opinion as to whether rape was committed on her or not. The Medical Officer, after examining the prosecutrix submitted report. After receipt of the said report, the Investigating Officer felt that the opinion given by the Medical Officer is vague and he, therefore, again made a query to the Medical Officer and requested to give positive opinion as to whether rape was committed on the prosecutrix some 7 days prior to her examination. The Sub-Divisional Police Officer, after completing the investigation submitted charge-sheet before the Judicial Magistrate, First Class, Kallam, who, in turn, committed the case to the Court of Sessions as the offence under section 376(2)(g) being exclusively triable by the Special Court/Court of Sessions. Accordingly, Sessions Case No. 10/2002 is registered. The Sub-Divisional Police Officer, after completing the investigation submitted charge-sheet before the Judicial Magistrate, First Class, Kallam, who, in turn, committed the case to the Court of Sessions as the offence under section 376(2)(g) being exclusively triable by the Special Court/Court of Sessions. Accordingly, Sessions Case No. 10/2002 is registered. The same was made over to the ad hoc Additional Sessions Judge, Osmanabad. 4. The ad hoc Additional Sessions Judge, Osmanabad, on 10-2-2003 framed charge against the accused as per Exhibit 7 for the offence punishable under sections 376(2)(g) read with 34 and 506 read with 34 of I.P.C. and also for the offence punishable under section 3(1)(xii) of the Scheduled Castes Scheduled Tribes (Prevention of Atrocities) Act, 1989. The charge was read over and explained to the accused. However, they pleaded not guilty to the charge and claimed to be tried. 5. The prosecution, to connect the accused with the abovesaid crime, examined near about 14 witnesses. P.W. 1 is Dr. Kaoshali Vilas Rokade, the Medical Officer, who examined the prosecutrix. Her evidence is at Exhibit 13 and through her evidence, the Medical Certificate Exhibit 14, which pertains to the opinion as regards age of prosecutrix on the basis of ossification test and the certificate which is at Exhibit 15 in respect of her opinion as regards rape, are got proved. Exhibit 16 which is the letter dated 7-6-2002 given by the P.S.I. to the Medical Officer making query and Exhibit 19, which is the reply letter dated 6-7-2002 given by the Doctor to the said letter, are also got proved through her evidence. A certificate about the blood group of prosecutrix is proved at Exhibit 20. P.W. 2 is the prosecutrix Kavita Haribhau Londhe. Her evidence is at Exhibit 21. Through her evidence, the report given by her, on the basis of which crime is registered, is got proved. The same is at Exhibit 22, on the basis of which Crime No. 78/2002 was registered. P.W. 3 is Baburao Rathod, Assistant Police Sub-Inspector, attached to Police Station Shiradhon, who recorded statement of Kavita, which is at Exhibit 22. Evidence of Baburao Rathod is at Exhibit 23. P.W. 4 is Samadhan Londhe brother of prosecutrix. His evidence is at Exhibit 24. P.W. 5 is Balaji Kamble and P.W. 6 is Pradip Londhe. Their evidence is at Exhibit 25 and Exhibit 26. Evidence of Baburao Rathod is at Exhibit 23. P.W. 4 is Samadhan Londhe brother of prosecutrix. His evidence is at Exhibit 24. P.W. 5 is Balaji Kamble and P.W. 6 is Pradip Londhe. Their evidence is at Exhibit 25 and Exhibit 26. Both the witnesses turned hostile and have not supported the prosecution. P.W. 7 is Hanmant Londhe, elder brother of prosecutrix. His evidence is at Exhibit 29. P.W. 8 is father of prosecutrix namely Haribhau Londhe. His evidence is at Exhibit-30. P.W. 9 is Annasaheb Kadam, the Police Constable with whom the attached property was sent to the Chemical Analyser. His evidence is at Exhibit-31. Through his evidence, office copy of the letter is got proved which is at Exhibit-32. P.W. 10 is Dr. Sanjay Madhekar. Evidence of this witness is at Exhibit-34 while the certificate given by the said Doctor is got proved at Exhibit-35. The letter Exhibit-38 is also got proved through his evidence. P.W. 11 is Bhau Dadarao Gade a pancha witness as regards attachment of clothes which were on the person of prosecutrix. His evidence is at Exhibit-39 and through his evidence, panchnama Exhibit-40 is got proved i.e. attachment of salwar and nicker. P.W. 12 is another pancha witness as regards attachment of clothes, which were on the person of accused Balaji. His evidence is at Exhibit-43. The said panchanama is at Exhibit-44 under which articles 3 and 4 i.e. pant and underpant were attached. P.W. 13 is P.S.I. Bansode, who initially investigated the said crime. His evidence is at Exhibit-45. Through his evidence, spot panchnama Exhibit-46 is got proved. Even, through his evidence, a letter addressed to Civil Surgeon, Osmanabad, Exhibit-49 is also got proved. P.W. 14 is Ashok Meshram, the Sub-Divisional Police Officer, who thereafter investigated the crime and submitted charge-sheet against the accused. His evidence is at Exhibit-50. Through his evidence, Caste Certificate of prosecutrix, which is at Exhibit-51 is got proved. Through his evidence, the C.A. reports, which are on record at Exhibits-52, 53 and 54 are also got proved. 6. The defence has not examined any witness. However, after recording statement under section 313 Cri.P.C., accused No. 1 produced a certificate issued by Gram Panchayat Andora in respect of death of Ganpat Limba Londhe which shows that he died on 27-5-2002. 7. 6. The defence has not examined any witness. However, after recording statement under section 313 Cri.P.C., accused No. 1 produced a certificate issued by Gram Panchayat Andora in respect of death of Ganpat Limba Londhe which shows that he died on 27-5-2002. 7. The ad hoc Additional Sessions Judge, after considering the evidence on record, concluded that the prosecution failed to prove that accused committed offence under section 3(1)(xii) of the Scheduled Castes Scheduled Tribes (Prevention of Atrocities) Act, 1989 and also concluded that the prosecution has failed to prove the offence under section 506 read with 34 I.P.C. He accordingly acquitted the accused for both these offences. The ad hoc Additional Sessions Judge, relying on the evidence of prosecutrix, supported by medical evidence and evidence of her relatives i.e. brothers and father, concluded that the prosecution has succeeded in proving the offence under section 376(2)(g) of the I.P.C. He accordingly convicted both the accused for the said offence and directed them to suffer rigorous imprisonment for 7 years and to pay fine of Rs. 2,000/-, in default, rigorous imprisonment for six months. The said order of conviction and sentence dated 8-5-2003 being challenged by filing the present appeal by the appellants-original accused. 8. In the appeal, I heard Shri S.S. Jadhavar, Advocate for the appellants original accused and Mrs. M.N. Deshpande, A.P.P. for the respondent-State, at length. 9. It is submitted by Shri Jadhavar, Advocate that the ad hoc Additional Sessions Judge, committed an error in concluding that the accused committed offence under section 376(2)(g) of I.P.C. as the evidence on record suffers from several infirmities. He submits that the Court below practically failed to consider the inconsistencies and discrepancies in the evidence of the witnesses examined on behalf of the prosecution. Secondly, according to him, the alleged incident took place on 24-5-2002 while the complaint is filed to the Police Station on 2-6-2002 and the delay of about 8 days remained unexplained. According to him, from the evidence on record, it can be gathered safely that the prosecutrix and her father were instigated to file a false complaint at the instance of one Bajrang Tate and Annasaheb Patole. However, the Court below, though referred this aspect in its judgment, but ignored the same. Thirdly, according to him, the evidence of prosecutrix is not reliable, acceptable and probable. However, the Court below, though referred this aspect in its judgment, but ignored the same. Thirdly, according to him, the evidence of prosecutrix is not reliable, acceptable and probable. According to him, when she was lifted or she realised that somebody is lifting her, at that time, it was possible for her to raise hue and cry. According to him, when accused took her between well and the stream, at that time, she raised shouts and when the distance between the room of the prosecutrix and the place of incident, according to the prosecutrix herself, is hardly 30 to 40 feet, in such circumstances, it was possible that her brothers and neighbour could have got up. However, according to him, if the said part of evidence of prosecutrix is considered, the Court below has committed an error in placing reliance on the said evidence. Fourthly, according to him, from the evidence of prosecutrix, it is seen that she was made to lie on the ground i.e. a rough surface and the Medical Certificate does not support this particular contention of the prosecutrix. Inspite of this, the Court below placed reliance on such evidence of prosecutrix. Shri Jadhavar, Advocate further submits that the present appellants have been falsely involved in the said crime so as to avoid repayment of an amount of Rs. 25,000/-, which the father of prosecutrix, was under an obligation to pay to Sakharam Mundhe. Lastly, according to him, at any rate, from the evidence on record, though the accused have not pleaded consent on the part of the prosecutrix, in case, the Court comes to the conclusion that offence has been committed by the accused, then an inference can be drawn from the circumstances on record that there was consent on the part of the prosecutrix. 10. 10. In support of his contention, Shri Jadhavar, Advocate for the appellants, has placed reliance on following authorities: (1) In the case of (Anmol Shridhar Gharde and others v. State of Maharashtra)1, reported in 1999(5) Bom.C.R. (N.B.)209 (2) In the case of (Joseph Kooveli Poulo v. State of Kerala)2, reported in A.I.R. 2000 S.C. 16 (3) In the case of (Austin Anton Decuna v. State of Maharashtra)3, reported in 1997(1) Bom.C.R. 565 ; (4) In the case of (State of Maharashtra v. Abdul Hafiz Faroki and others)4, reported in 1998(5) Bom.C.R. (S.C.)926 (5) In the case of (Suresh N. Bhusare and others v. State of Maharashtra)5, reported in A.I.R. 1998 S.C. 3131; (6) In the case of (Dilip and another v. State of Madhya Pradesh)6, reported in 2001 All.M.R.(Cri.) 2377; (7) In the case of (State of Maharashtra v. Pandit Maruti Chougule)7, reported in 2002(Cri. Supp.) Bom.C.R. 801. (8) In the case of (Prasad Uttam Mainkar v. State of Goa)8, reported in 2002 All.M.R.(Cri.) 1043; (9) In the case of (Valliappa Harijan v. State of Goa)9, reported in 1997 Bom.C.R.(Cri.) 215 ; (10) In the case of (Domnic v. State)10, reported in 1997 All.M.R.(Cri.) 105. 11. Relying on the ratio laid down in the above authorities, Shri Jadhavar, Advocate for the appellants submits that the order passed by the ad hoc Additional Sessions Judge, convicting the appellants for the offence under section 376(2)(g) is not proper and justified. He, therefore, requests to allow the appeal and to set aside the order of conviction and sentence. 12. On the other hand, it is submitted by Mrs. M.N. Deshpande, A.P.P. for the respondent-State, that the evidence on record adduced by the prosecution is satisfactory and convincing. She further submits that there was no reason for the prosecutrix to file a false complaint. Her evidence creates confidence. The said evidence is also supported by the evidence of her brothers, father and even it is also corroborated by the medical evidence. According to her, there is no infirmity in the evidence adduced by the prosecution. She submits that the conclusion arrived at by the ad hoc Additional Sessions Judge convicting the appellants is proper and justified. The said evidence is also supported by the evidence of her brothers, father and even it is also corroborated by the medical evidence. According to her, there is no infirmity in the evidence adduced by the prosecution. She submits that the conclusion arrived at by the ad hoc Additional Sessions Judge convicting the appellants is proper and justified. She further submits that in the present case, it can be gathered safely that the prosecutrix was below the age of 16 years and, therefore, there was no question of consent nor there is scope to infer consent on the part of the prosecutrix. She submits that to prove the consent, there must be an active participation on the part of the prosecutrix and considering her age, the submission made on behalf of the appellants that there is scope to infer the consent, needs to be discarded. She further submits that in the present case, as the offence is under section 376(2)(g) of I.P.C. therefore, presumption under section 114-A of the Evidence Act is also available to the prosecution. A request is accordingly made to dismiss the appeal as the same being without merit. 13. Considering the submissions made on behalf of the parties, it is necessary to scan and scrutinise the evidence on record so as to see whether the finding recorded by the ad hoc Additional Sessions Judge convicting the present petitioners for the offence punishable under section 376(2)(g) is proper and justified. 14. Before analysing and scrutinising the evidence on record, to my mind, a reference is necessary to the authority in the case of (Bharwada Bhoginbhai Hirjibhai v. State of Gujarat)11, reported in A.I.R. 1983 S.C. 753. So far as regards guidelines in appreciating the evidence, it is observed in the said authority to the following facts: "Overmuch importance cannot be given to the minor discrepancies and the reason for the same: (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. (2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person. What one may notice, another may not. (2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person. What one may notice, another may not. (4) By and large, people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. (5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guesswork of the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. (7) A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross-examination made by Counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of moment. The discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore, cannot be annexed with undue importance. More so when all the important "probabilities factor" echoes in favour of the version narrated by the witnesses." So far as corroboration to the evidence of prosecutrix is concerned, a reference to same observations in the said authority is necessary. It is observed in the said authority to the following effect : "Corroboration is not a sine quo non for a conviction in a rape case. In the Indian setting, refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury." 15. A reference is also necessary to one authority i.e. in the case of (State of Maharashtra v. Chandraprakash Kewalchand Jain)12, reported in 1990(2) Bom.C.R. 630 , wherein it is observed to the following effect: "A prosecutrix of a sex offence cannot be put on par with an accomplice. A reference is also necessary to one authority i.e. in the case of (State of Maharashtra v. Chandraprakash Kewalchand Jain)12, reported in 1990(2) Bom.C.R. 630 , wherein it is observed to the following effect: "A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under section 118 of Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no Rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to section 114 which requires it to look for corroboration." It is further observed in the said authority to the following effect: "To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. ...... ...... ....... ...... ..... ...... Decency and morality in public life can be promoted and protected only if the courts deal strictly with those who violate the societal norms. The standard of proof to be expected by the Court in such cases must take into account the fact that such crimes are generally committed on the sly and very rarely direct evidence of a person other than the prosecutrix is available. Courts must also realise that ordinarily a woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity." 16. Courts must also realise that ordinarily a woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity." 16. A reference is also necessary to one more authority in the case of (Bodhisattwa Gautam v. Subhra Chakraborty)13, reported in A.I.R. 1996 S.C. 922 wherein it is observed to the following effect: "Rape is not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crises. It is only by her sheer will power that she re-habilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victims most cherished of the Fundamental Rights." 17. Thus, it is now necessary to scan and scrutinise the evidence on record adduced by the prosecution. A reference is necessary to some of the undisputed facts in the present case. Accused No. 1 is the son of Sakharam Mundhe, who runs a brick kiln by the side of Dhoki-Kallam road at Govindpur Patil from which Govindpur village is only at a distance of half km. Sakharam Mundhe used to engage labours for the work at brick kiln and accordingly father of victim namely Haribhau Londhe was one of the labour, who used to work at the brick kiln along with this wife, three sons and the prosecutrix. It is also not in dispute that 7 rooms are constructed by Sakharam Mundhe, out of which only 2 rooms were occupied at the relevant time i.e. one by the family of prosecutrix and one by another labour, while other 5 rooms were vacant. It is also not in dispute that Haribhau Londhe, along with his family, used to work since last six years, prior to the date of incident, on the said brick kiln. His native place is Andora, Tq. Kallam. It is also not in dispute that on the day of incident, parents of prosecutrix had gone to village Andora to see ailing Ganpat Londhe, grand father of prosecutrix and prosecutrix and her three brothers were only in their room at the site of brick kiln. 18. His native place is Andora, Tq. Kallam. It is also not in dispute that on the day of incident, parents of prosecutrix had gone to village Andora to see ailing Ganpat Londhe, grand father of prosecutrix and prosecutrix and her three brothers were only in their room at the site of brick kiln. 18. With this admitted facts on record, it is necessary to consider the evidence of prosecutrix. Her evidence is at Exhibit-21. In her evidence, she has given her age as 15 years. The report given by her to the Police Station Shiradhon also shows that the age of prosecutrix, as given by her, is 15 years. During the course of investigation, she was referred to the Medical Officer so as to examine her on two points-firstly to ascertain her age on the basis of the ossification test and secondly to see whether rape was committed on her. So far as ossification test is concerned, evidence of P.W. 1 Dr. Kaoshali Rokade is on record at Exhibit-13 and the certificate issued by her in respect of age of prosecutrix after ossification test is at Exhibit-14. According to her, age of prosecutrix, on the basis of ossification test is between fourteen to sixteen half years. This aspect from the evidence of P.W. 1 is again consistent with the evidence given by prosecutrix when she says that her age is 15 years. It is also on record that prosecutrix is studied up to 6th standard. It is true that during the course of investigation, it was possible for the Investigating Officer to collect a certificate from the school authorities to ascertain her date of birth, but that aspect, by itself, is not sufficient to discard the other material evidence on record showing her age at the time of filing the complaint being 15 years. It is also necessary to make it clear than in this respect, on behalf of the defence, there was no suggestion either to P.W. 1 Doctor who has issued certificate Exhibit 14 nor there is any suggestion to the prosecutrix P.W. 2, challenging the age given by the prosecutrix in her evidence as well as in the complaint and, therefore, I find that the age given by the prosecutrix that she was 15 years of age at the time of filing of complaint can be safely accepted. 19. 19. The next aspect is about the incident in question. The evidence of prosecutrix makes it clear that the alleged incident took place on 24-5-2002, it was Friday. On that day her parents had gone to native place. She herself alongwith her three brothers was present in their room at the site of brick kiln. They took their meals at about 9.00 p.m. and thereafter slept in front of the room in the court yard. She further made it clear in her evidence that both the accused came at about 11.00 p.m. Balaji i.e. appellant No. 1 pulled her, accused No. 2 was with him. He pressed mouth of prosecutrix and both of them then took prosecutrix between the stream and the well. Keshav pressed her neck. She received scratches on her neck. She further made it clear in her evidence that she tried to escape and run away from the said place and in her attempt she fell down and received injury to her knee. She further made it clear in her evidence that both the accused caught hold her and pulled her. Keshave caught her hand and accused No. 1 pressed her breasts and then committed rape on her. She stated that he inserted his penis in her vagina. Both the accused thereafter left the place. She thereafter returned to the room at the site of brick kiln. She then got up her brothers Samadhan and Hanmant. Even the neighbour namely Ankush also got up at that time. She then narrated him in respect of the incident as also to her brothers. The neighbour then advised her to wait till return of her parents from native place. On the next day, her parents returned and she accordingly told in respect of the incident to her parents. Her evidence further makes it clear that the father of prosecutrix then informed as that her grand father i.e. Ganpat Londhe being serious on account of illness, all of them have to proceed to their native place i.e. Andora. It is clear from the record that her grand father namely Ganpat Londhe died within 2/3 days thereafter. Complainant then made report to the Police Station on 2-6-2002 at Shiradhon and accordingly Crime No. 78/2002 came to be registered. The report is proved through her evidence at Exhibit-22. 20. It is clear from the record that her grand father namely Ganpat Londhe died within 2/3 days thereafter. Complainant then made report to the Police Station on 2-6-2002 at Shiradhon and accordingly Crime No. 78/2002 came to be registered. The report is proved through her evidence at Exhibit-22. 20. On perusal of report Exhibit-22, I find that prosecutrix has given all the minute details in respect of the incident, manner in which it took place, role or part placed by the present appellants in the said incident and in respect of disclosure to her brothers, neighbour and thereafter to her father. I find that the evidence of prosecutrix is again consistent with the F.I.R. Exhibit-22. 21. The prosecution has examined P.W. 4 Samadhan, Hanmant P.W. 7 brothers of prosecutrix, P.W. 8 Haribhau i.e. father of prosecutrix. On close scrutiny of their evidence, I find that their evidence is consistent as regards the alleged incident took place on 24-5-2002. 22. A reference, in this respect, is also necessary to evidence of P.W. 1 Medical Officer who examined the prosecutrix and issued certificates at Exhibits-15 and 19. Evidence of P.W. 1 sufficiently makes it clear that she examined the prosecutrix on 3-6-2002 at about 5.15 p.m. So far as commission of rape is concerned, according to the Doctor, there were healed scars on the left side neck, healed scars on the right joint knee and age of injury, according to her is more than one week. On genital examination, she noticed matting of public heirs absent, hymen ruptured, old tear, edges found irregular and on P.V. examination, she found that it admits one finger easily. Initially she has given opinion that exact opinion about intercourse cannot be given, however, vaginal swab taken for chemical analysis. The Investigation Officer on 7-6-2002 made a query to the Doctor as her noticed that opinion given by the Medical Officer is vague and when certain queries were made by the Investigation Officer, the Doctor replied said queries by letter, which is proved at Exhibit-19 informing the Investigating Officer to the following effect: "According to clinical examination, intercourse has occurred before 7 days, as there is hymen ruptured, old tear and there are healed injuries on the left side of neck and right knee joint." 23. The letter given by the Investigating Officer to the Doctor is also got proved and the same is on record which is at Exhibit-16. Thus, if the evidence of P.W. 1 is read together with these documents i.e. Exhibit-16, Exhibit-19 and evidence of prosecutrix at Exhibit-21, I find that there is sufficient corroboration to the evidence of prosecutrix as, in her evidence she has stated that accused No. 2 Keshav pressed her neck and she received injury on her neck. This aspect is supported by the medical evidence. Even another aspect is that she tried to rescue herself and in her attempt, she fell down and sustained injury to her knee. This is again supported by the medical evidence because in certificate Exhibit-16 there is reference to two injuries (1) healed scars on the left side on neck, healed scars on the right knee joint and even there is a reference about the age of injury to be more than one week and this aspect finds support from the fact that she was examined on 3-6-2002. Thus, I find that the evidence of P.W. 1 Doctor i.e. medical evidence is consistent with the evidence of prosecutrix. 24. The prosecution has examined P.W. 3 Baburao Rathod, the Police Inspector. His evidence is at Exhibit-23. He has recorded statement of prosecutrix and accordingly registered Crime No. 78/02. His evidence again corroborates the evidence of prosecutrix. So far as evidence of P.W. 9 is concerned he is a Police Constable with whom the attached articles were sent to Chemical Analyser. P.W. 10 is the Medical Officer who examined Balaji, accused No. 1 and the certificate issued by P.W. 10 Exhibit 35 further makes it clear that Balaji is not impotent. P.W. 11 and P.W. 12 are the panch witnesses in respect of the attachment of clothes which were on the person of prosecutrix and present accused. So far as attachment of clothes from the person of accused has got no relevance in view of the fact that the alleged incident had taken place on 24-5-2002 while the accused wee arrested on 29-7-2002. P.W. 13 and P.W. 14 are the Investigating Officers. Through the evidence of P.W. 13, spot panchanama is got proved, which is at Exhibit-46 and the location as given by this witness is again consistent. P.W. 13 and P.W. 14 are the Investigating Officers. Through the evidence of P.W. 13, spot panchanama is got proved, which is at Exhibit-46 and the location as given by this witness is again consistent. The C.A. report is on record and so far as Nicker (Jangya) is concerned, the C.A. report Exhibit-52 also gives a link that the same was stained with blood in the middle and appears to be washed. Thus, I find that evidence of prosecutrix is definitely satisfactory, cogent and the same is trustworthy and acceptable. Evidence of prosecutrix, on its close scrutiny, also creates confidence and I find that there is no reason to discard her evidence. I further find that the ad hoc Additional Sessions Judge has rightly relied the said evidence, I do not find any infirmity in the said conclusion. 25. There is one more circumstance. In the present case, the alleged incident took place on 24-5-2002, however, the accused were absconding till 29-7-2002 and the Investigating Officer could succeed in arresting the present appellants only on 29-7-2002. 26. A reference is now necessary to some of the contention raised on behalf of the present accused. Shri Jadhavar, Advocate for the accused submits that the delay in lodging the F.I.R./report has not been satisfactorily explained. A reference in this respect is necessary to one authority i.e. (State of Punjab v. Gurmit Singh and others)14, reported in A.I.R. 1995 S.C. 1393, wherein it is observed to the following effect : Criminal Procedure Code section 154-Sexual offences-Delay in lodging F.I.R. is immaterial when properly explained. "In sexual offices delay in the lodging of the F.I.R. 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. Even if there is some delay in lodging F.I.R. in respect of offence of rape, if it is properly explained and the explanation is natural in the facts and circumstances of the case, such delay would not matter." 27. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged. Even if there is some delay in lodging F.I.R. in respect of offence of rape, if it is properly explained and the explanation is natural in the facts and circumstances of the case, such delay would not matter." 27. A reference is also necessary to one mere authority i.e. in the case of (Thulia Kali v. State of Tamil Nadu)15, reported in A.I.R. 1973 S.C. 501, wherein it is observed to the following effect: "The First Information Report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be over estimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained." 28. Considering the ratio laid down in the above authority, as I have already referred above, on account of ill health of Ganpat Londhe-grand father of prosecutrix, there was delay in lodging the F.I.R. There is one more circumstance in the present case. As the prosecutrix, her father and brothers were working as labours at the brick kiln of Sakharam Mundhe, since last six years with the father of present accused No. 1 viz. As the prosecutrix, her father and brothers were working as labours at the brick kiln of Sakharam Mundhe, since last six years with the father of present accused No. 1 viz. Sakharam Mundhe, and this aspect, in one way or the other, might have caused delay in filing the complaint/F.I.R. However, at any rate, on close scrutiny of the evidence on record, it cannot be said that the involvement of present accused in the said crime is false as there is no reason for the prosecutrix to involve the present accused falsely in the said crime. There is no mistaken identity. Even the evidence of prosecutrix is so specific, in a way, that she has given all the details in respect of the part played by the present appellants-original accused in the said incident and there is immediate disclosure in respect of the said incident to her brothers and on the next day to her father when he returned from his native place. I find that thus the delay has been satisfactorily explained. 29. The next contention, as submitted by Shri Jadhavar, Advocate for the appellants is that the present appellants have been involved in the said crime falsely and the reason, as given on behalf of the defence is that father of prosecutrix was under an obligation to pay an amount of Rs. 25,000/- to the father of accused No. 1 and, therefore, to avoid payment, the said complaint has been filed. On close scrutiny of evidence on record, it is seen that as the family of prosecutrix was working on the brick kiln of Sakharam Mundhe since last six years, the possibility of advancing some amount to the labours cannot be Ruled out and this is sufficiently clear from the evidence of Samadhan and Hanmant-brothers of prosecutrix, as, in their evidence, they have stated that the account was to be settled by the end of May each year and at the time of settlement of account, it was noticed that some amount is due and payable by their father to Sakharam Mundhe. It is further material to note that when it is specifically alleged that Haribhau Londhe-father of prosecutrix was under an obligation to return the amount to the father of accused No. 1, it is clear from bare perusal of cross-examination of this witness i.e. P.W. 8 Haribhau Londhe that there is no suggestion at all to that effect to the said witness. Even the evidence of Samadhan Hanmant is so natural that they have fairly stated that at the time of marriage of Hanmant some clothes were purchased through Sakharam Mundhe from the shop of one Mahavir. It is clear from this that they may be under an obligation to return some amount towards the purchase of clothes that too to the owner of Mahavir Cloth Shop and, therefore, I find that the defence, as set up by the accused in that respect is totally baseless, unfounded and the Court below has rightly discarded the same. 30. The last aspect is about the consent. According to Shri, Jadhavar, Advocate for the appellants, on the basis of ossification test, the Doctor has given the age of prosecutrix between fourteen to sixteen half years and, therefore, according to him there is a possibility or the circumstances goes to show that there was consent on her part. He, therefore, submits that in case it is held that the present accused have committed any offence, there is scope to infer that there was consent on the part of the prosecutrix. As already referred and concluded above, from the evidence on record, it is very safe to conclude that her age, at the time of incident was 15 years and, therefore, the consent theory has got no relevance. Secondly in the present case, had there been a consent on the part of the prosecutrix, after she returned from the place of incident, then she should not have got up her brothers and informed them in respect of the said incident. Thirdly, the offence is under section 376(2)(g) and in the present case, from the circumstances on record, a presumption under section 114-A of the Evidence Act is available to the prosecution and therefore, the consent theory, as set up on behalf of the present appellants, again needs to be discarded. The Court below has also rightly discarded the same. Thirdly, the offence is under section 376(2)(g) and in the present case, from the circumstances on record, a presumption under section 114-A of the Evidence Act is available to the prosecution and therefore, the consent theory, as set up on behalf of the present appellants, again needs to be discarded. The Court below has also rightly discarded the same. I thus, find that the conclusion arrived at by the Court below convicting the present appellants for the offence under section 376(2)(g) of I.P.C. is definitely proper and justified. The order of conviction, therefore, needs to be maintained. 31. So far as sentence is concerned, it is true that offence punishable under section 376(2)(g) I.P.C. shall be punished with rigorous imprisonment for a term which shall not be less than ten years. However, in the present case, as submitted by Shri Jadhavar, Advocate for the appellants, accused No. 1 is hardly aged about 24 years while accused No. 2 is aged about 25 years. They are the earning members of their family. They have to maintain their newly wedded wives and old aged parents. Shri Jadhavar, Advocate submits that considering the above aspects, a lenient view may be taken. Considering these aspects. I find that the ad hoc Additional Sessions Judge has considered this aspect. However, I find that considering the above submissions, sentence of five years rigorous imprisonment will meet the ends of justice. 32. In the result, the order of conviction passed by the ad hoc Additional Sessions Judge convicting the present appellants for the offence punishable under section 376(2)(g) I.P.C. is maintained. However, the order of sentence is modified and the appellants are directed to suffer rigorous imprisonment for five years and to pay fine of Rs. 2,000/- by each of them. With this modification, in the order of sentence, the appeal stands dismissed. The applicants are entitled to get set off for the offence under section 428 Cri.P.C. 33. Record Proceedings be sent to the lower Court immediately. Appeal dismissed. -----