Judgment : ( 1 ) ALL the three appellants were put on trial for charges under Sections 20o6 ramu Mandal v. State of Bihar 4515 376 (G)/120b on the allegation that all the three accused persons committed mass rape upon the prosecutrix, Surti Devi (P. W. 4 ). The learned Judge having found the appellants guilty convicted each of them under Section 376 (G)/120b of the Indian Penal Code and sentenced each of them to undergo R. I. for 10 years. ( 2 ) THE case of the prosecution is that the informant, Surti Devi (P. W. 4) on 12-6-1998 came to see her husband to Dumka, who had been lodged at Dumka Jail and as the night broke out she came to Dumka Bus stand and sat at the passengers shed where at about 11 P. M. the appellant, Ramu mandal came and asked her to come to hotel for taking rice. Upon which she came to hotel and while she was cleaning utensil the appellant, Ramu Mandal came and took her inside the hotel and committed rape on her. Thereafter two other friends of Ramu Mandal also committed rape on her. ( 3 ) ACCORDING to the prosecutrix she on account of being ashamed with the happening did not inform to the police but when her husband insisted on to lodge the case she did lodge the case. ( 4 ) THE informant (P. W. 4) gave her fardbeyan (Ext.-2) on 25-7-98 at 8. 30 A. M. On the basis of the said fardbeyan the first information report was lodged and the matter was taken up for investigation. ( 5 ) DURING investigation complicity of other two appellants, namely, Makchan Mahto and Kartik Dutta transpired as the persons, who also committed rape upon the informant. In course of investigation, the police also send the informant before Dr. Mridula vibhakar (P. W. 3) for her examination, who did examine the informant on 27-7-98, but did not find any sign of rape. However, she noticed that there is a old rupture of hymen. Accordingly, she issued the report, which has been marked as Ext. 1. ( 6 ) AFTER completion of the investigation, the police submitted chargesheet. Mridula vibhakar (P. W. 3) for her examination, who did examine the informant on 27-7-98, but did not find any sign of rape. However, she noticed that there is a old rupture of hymen. Accordingly, she issued the report, which has been marked as Ext. 1. ( 6 ) AFTER completion of the investigation, the police submitted chargesheet. Upon which the cognizance of the offence was taken and in due course when the case was committed to the Court of Sessions the charges were framed, to which the appellants pleaded not guilty and claimed to be tried. In course of trial the prosecutrix, Surti devi was examined as P. W. 4, who in her evidence, testified that in the night of the occurrence she was taken to hotel by Ramu mandal where he committed rape on her and she also named the other two appellants i. e. Makchan Mahto and Kartik Dutta, as the persons who also committed rape on her. She has further deposed that on the next morning she informed to the police and on the following morning police came to the hotel, but did not take any action, rather he connived with the owner of the hotel and when her husband wrote to D. C. and S. P. then the case was instituted. The hotel owner, Subodh Kumar Pandey was examined as P,w. 1, who has deposed that on 12-6-1998 he went home at 10 O-clock in the night after closing the hotel and in the next morning i. e. on 13-6-1992, Ramu mandal took leave and other two persons namely Makchan Mahto and Kartik Dutta went away without taking leave and in the morning police came and told him that in the previous night rape has been committed in his hotel and then when the police asked the name of other two persons he disclosed to him. After the case of the prosecution was closed the appellants were questioned under Section 313 about the incriminating circumstances, to which they denied. ( 7 ) THE learned Court below after taking into consideration the evidences did find that all the three accused persons committed rape upon the informant (P. W. 4) and hence held them guilty under Sections 376 (G)/ 120b of the Indian Penal Code. ( 8 ) MR. Mahavir Pd. ( 7 ) THE learned Court below after taking into consideration the evidences did find that all the three accused persons committed rape upon the informant (P. W. 4) and hence held them guilty under Sections 376 (G)/ 120b of the Indian Penal Code. ( 8 ) MR. Mahavir Pd. Sinha, learned counsel, who was appointed as amicus curiae submits that the informant (P. W. 4) in her fardbeyan, has named only Ramu Mandal as an accused and did not name the other two appellants and when P. W. 4, as per her evidence, informed to the police on the following morning of the occurrence, police came before the Hotel owner, who disclosed the name of all the three persons in order to save his skin and therefore all the three appellants are quite innocent. It was further submitted that the I. O. , Upendra Yadav (P. W. 5), in his evidence, has stated that kartik Dutta was referred to doctor, who after examining him did report that Kartik dutta is incapable of committing rape and in that view of the matter entire statement made by P. W. 4 is shrouded with doubt and therefore benefit of doubt should be given to all the appellants. It was also submitted that occurrence has been taken on 12-6-1998 whereas police on getting information from the informant came to the place of occurrence on 13-6-1998 and in that situation institution of the case on 25-7-1998 after 42 days, certainly creates doubts over the prosecution case. ( 9 ) IT is the case of the prosecutrix as has been noticed above that on 12-6-1998 she had come to Dumka to see her husband, who had been lodged at Dumka Jail, but as it became night she came to bus stand where she was sitting in the passengers shed and at about 11 P. M. the appellant, Ramu mandal came and took him to Surmit Hotel where Ramu Mandal committed rape. It is also said that two other persons, who were there also committed rape. It is also said that two other persons, who were there also committed rape. P. W. 4 subsequently in her evidence has named other two appellants, Makchan Dutta and Kartik dutta, as the persons who also committed rape along with Ramu Mandal, but the P. W. 4 is absolutely silent as to how she came to know about the name of other two persons though this witness, in her evidence, has stated that she identified the accused persons in T. I. Parade in the Jail, but strangely i. O. (P. W. 5) has deposed that T. I. Parade was never conducted. In the circumstances as stated above it becomes quite doubtful that makchan Dutta and Kartik Dutta committed rape on P. W. 4. Moreover, I do find that according to P. W. 5, Kartik Dutta when was apprehended was forwarded before doctor for examination and on being examined report was submitted to the effect that he is incapable of committing rape. Keeping in view all these aspects of the matter the appellants, Makchan Mahto and Kartik Dutta are entitled to have benefit of doubt. In the result they are acquitted of the charges levelled against them. ( 10 ) SO far the appellant, Ramu Mandal is concerned, he has been named in the fardbeyan (Ext. 2) by P. W. 4 and subsequently p. W. 4, in her evidence, has categorically deposed that he committed rape on her when he took her to hotel from the bus stand. I do not find anything in the testimony of the witness so as to discard her testimony. So far matter related to delayed institution of the case is concerned that in the fact and circumstances given below does not affect the veracity of the testimony of P. W. 4. ( 11 ) IT has already been noticed that occurrence took place on 12-6-98 and as per the evidence of P. W. 4 she on the following, morning informed to the police about the commission of rape at Hotel and the police came to the hotel and made some inquiry from the hotel owner and then did not do anything. She has further stated after the matter was reported to D. C. and S. P. the case was instituted. She has further stated after the matter was reported to D. C. and S. P. the case was instituted. The fact which has been narrated by P. W. 4 that the police came to the hotel on the next morning also gets support from the evidence of P. W. 1. Subodh kumar Pandey, the hotel owner, who has specifically said that the police on 13-6-1998 had came to the hotel to whom he disclosed the name of the persons, who were his employees. In that event if the case was not instituted promptly by the police officer, the fault lies with the police officer and not with the P. W. 4. Therefore any delay occurred in lodging the case is not fetal to case of prosecution. Thus I do find that the trial Court has rightly come to the conclusion that ramu Mandal committed rape on P. W. 4. It be stated that the trial Court convicted the appellant under Section 376 (G) as well as 120b of the Indian Penal Code, though there is absolutely no evidence so far charge under Section 120b of the Indian Penal Code is concerned. As only one appellant has been found to be guilty for committing rape conviction and sentence imposed under Section 376 (G) and 120b of the Indian Penal Code, is hereby set aside and instead of that appellant, Ramu Mandal is convicted under section 376 of the Indian Penal Code and he is sentenced for a period already undergone in custody. ( 12 ) IN the result, this appeal is partly allowed. Order accordingly. --- *** --- .