Judgment D.K. Sinha, J.-The present Cr. Appeal is directed against the judgment of conviction and order of sentence passed on 25.7.2003 and 26.7.2007 respectively by the IV Additional Sessions Judge, Dumka in Sessions Case No. 143 of 1995 whereby and whereunder the appellants, Bhola Tudu and Munna Tudu are convicted under section 376(2)(g) of the Indian Penal Code for committing gang rape on the prosecutrix Salani Kisku and sentenced each of the appellants to undergo rigorous imprisonment for five years. 2. The prosecution story, as it stands narrated in the statement of P.W. 1 Saloni Kisku, at the police station on 25.5.1993, was that she was an unmarried girl and on 23.5.1993 she had been towards east of her house in the field at about 2 O'clock noon to pluck leaves in the barren land. While she was returning at about 6 p.m., the appellants Bhola Tudu, Munna Tudu and one Dumai Murmu pushed head loaded basket of leaves. Consequently the basket fell down and the leaves scattered. She further narrated that the appellant Bhola Tudu forcibly laid her down on the earth and committed rape by removing her garments. Thereafter, the appellant Munna Tudu and after him Dumai Murmu ravished her one by one. She further narrated that in spite of her strong resistance and opposition she could neither raise alarm as her mouth was gagged nor she could get her self released. The culprits terrorized her by warning that she would be killed in case of conveying the occurrence to anyone. The culprits escaped thereafter. She returned back to her home and narrated the occurrence to her father Bhan Kisku (P.W. 2) and other members of her family. The matter was informed to the village Panchayat of Tarejora and on the advise the matter was reported to the police by lodging FIR against all the three named accused and explaining the delay giving rise to Jama P.S. Case No. 31/ 1993 on 25.5.1993 under section 376 IPC. The accused Dumai Tudu claimed to be Juvenile for his trial by competent court and upon being satisfied his case was split up and transferred to the Juvenile Justice Court (ACJM) by the order of the C.J.M. on 25.1.1994. 3. Charge was framed against the appellants under section 376 of the Indian Penal Code on 31.3.1998 but the appellants pleaded not guilty and claimed to be tried. 4. 3. Charge was framed against the appellants under section 376 of the Indian Penal Code on 31.3.1998 but the appellants pleaded not guilty and claimed to be tried. 4. The prosecution examined altogether five witnesses viz. P.W. 1 Bhan Kisku, the father of the prosecutrix; P.W. 2 Prosecutrix Solani Kisku; P.W. 3 Subodhi Murmu mother of the prosecutrix; P.W. 4 Neelmuni Kisku sister of the prosecutrix and P.W. 5 Dr. Pushpalata Tudu who had examined the prosecutrix Saloni Kisku. The prosecution failed to produce the Investigating Officer of the case in the witness box. Besides, the prosecution proved the signature of P.W. 1 Bhan Kisku on the statement of the prosecutrix at the police station Ext. 1 and the medical report Ext. 2. 5. To begin with, Mr. Rajeeva Sharma, the learned Sr. Counsel submitted that the entire prosecution case is false and concocted and the appellants have been convicted without legal evidence for the serious charge under section 376 of the Indian Penal Code. Hammering upon the maintainability of the conviction of the appellants under section 376(2)(g) of the Indian Penal Code, the learned counsel pointed out that the appellants have been highly prejudiced as their conviction cannot be sustained under the graver offence of gang rape under section 376(2)(g) of the Indian Penal Code as against charge framed in lighter section under section 376 of the Indian Penal Code. 6. According to Mr. Sharma, the medical evidence completely negatives the prosecution case that Solani Kisku was gang raped. She was examined by P.W. 5 Dr. Pushpalata Tudu on 25.5.2003 at 9.30 a.m. at Sadar Hospital, Dumka and she found the following:- Height- 4 ft. 10.5 inches Weight- 96 Pounds Teeth-upper-16, Lower-16 Auxiliary Pubic hair-present Breast-developed. The expert P.W. 5 did not find any mark of injury on Saloni Kisku externally. Even on internal examination of her private part neither injury nor foreign hair was found. The doctor further found old rupture of hymen and similarly no spermatozoa was found in the pathological test of her vaginal swab. Her age was assessed between 18-19 years on the basis of secondary sex character, number of teeth found and the X'ray report. P.W. 5 Dr. Pushpalata Tudu proved the injury report (Ext. 2). In the cross-examination she expressed inability to assess the duration of the injury if at all sustained, in the internal part of the victim, subjected to rape. Her age was assessed between 18-19 years on the basis of secondary sex character, number of teeth found and the X'ray report. P.W. 5 Dr. Pushpalata Tudu proved the injury report (Ext. 2). In the cross-examination she expressed inability to assess the duration of the injury if at all sustained, in the internal part of the victim, subjected to rape. Yet, the witness opined that the injury would persist on the internal part of a girl if ravished by more than two persons. 7. Mr. Sharma raised the next point by submitting that the Investigating Officer of the case could not be examined in the witness box during the trial which prejudiced the appellants for being denied of the opportunity to cross-examine him on the point of alleged place of occurrence as could not be specified in the testimony of the prosecutrix (P.W. 2). 8. According to the prosecutrix, she was ravished at three places by the culprits in spite of her resistance and opposition as a result of which she sustained scratches on her back and waist but no corresponding injury was found in her injury report. She admitted having shown the Investigating Officer all the three places where she was ravished by the appellants and another but without opportunity to the appellant to cross-examine the Investigating Officer. She testified having produced her petti-coat before the police but without seizure list on the record. Similarly, there was no seizure list of blouse alleged to be torn. The prosecutrix narrated by testifying that her ear ring had fallen down at the place of occurrence on the resistance made by her but the same could not be located by the Investigating Officer who visited the place of occurrence on pointing out by the prosecutrix so as to establish a relevant fact that it was the place of occurrence. 9. Finally Mr. Sharma submitted that the occurrence as alleged took place on 23.5.1993 at 6 p.m. but the statement of the prosecutrix was recorded at the police station on 25.5.1993 at 2.30 p.m. without plausible explanation. The FIR, which is in the record, has not legally been brought on the record as riot being proved. The case was registered on 25.5.1993 but it was dispatched on 26.5.1993 which was received in the Court of C.J.M. on the same day. According to Mr. The FIR, which is in the record, has not legally been brought on the record as riot being proved. The case was registered on 25.5.1993 but it was dispatched on 26.5.1993 which was received in the Court of C.J.M. on the same day. According to Mr. Sharma, the unexplained delay of one day gives room that the occurrence did not take place in the manner presented by the prosecution. 10. Mr. V.S. Sahay, the learned A.P.P. pointed out that in catena of decisions the Apex Court held that the prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There was no rule of law that her testimony cannot be acted without corroboration in material particulars as it stood at a higher pedestal than an injured witness. 11. According to Mr. Sahay, the occurrence took place on 23.5.2003 at about 6 p.m. and the victim girl reported the matter to her parents in the same evening and her parents brought the matter to the notice of the village Panchayat where her father P.W. 1 was advised to lodge the case before the police. Pursuant to that, he took the prosecutrix (P.W. 2) to the police station where her statement was recorded on 25.5.1993 at about 2.30 p.m. and in this manner delay in lodging the FIR was satisfactorily explained by the prosecution. The FIR was dispatched from the police station on 26.5.1993 which was received on the same day by the C.J.M. 12. Advancing his arguments Mr. Sahay further submitted that admittedly no injury was found either externally or internally on the private part of the victim when she was produced and examined by P.W 5 Dr. Pushpalata Tudu on 26.5.1993 after about three days of the occurrence. Admittedly the prosecutrix was rustic lady having no awareness what to do under such situation and delay in institution of the FIR was beyond her control. Therefore, it can well be presumed that the delay if at all was properly explained. Mr.Sahay further pointed out that the trial court observed for the injuries being not found on the person of the victim as because she was a woman working as labourer and for such reason no injury could be detected in her private part almost after three days of the alleged occurrence. Mr.Sahay further pointed out that the trial court observed for the injuries being not found on the person of the victim as because she was a woman working as labourer and for such reason no injury could be detected in her private part almost after three days of the alleged occurrence. The victim P.W 2 Saloni Kisku narrated the occurrence consistently by testifying as to how the appellants with another committed gang rape on her while she was returning alone in the evening of 23.5.1993 to her home with head load of leaves. The judgment delivered and order of sentence passed against the appellants are well discussed which do not call for interference. 13. In the case of State of Punjab vs. Gurmit Singh, (1996)2 SCC 384 the Apex Court held:- "In cases involving sexual molestation, supposed consideration which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not over look. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury." In the case of State of Rajasthan vs. N.K., (2000)5 SCC 30 the Apex Court held:- "It is true that the golden thread which runs throughout the cobweb of criminal jurisprudence as administered in India is that nine guilty may escape but one innocent should not suffer. But at the same time no guilty should escape unpunished once the guilt has been proved to hilt. An unmerited acquittal does no good to the society. But at the same time no guilty should escape unpunished once the guilt has been proved to hilt. An unmerited acquittal does no good to the society. If the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and given benefit thereof where none exist. A doubt, as understood in criminal jurisprudence, has to be a reasonable doubt and• not an excuse for a finding in favour of acquittal." 14. Having regard to the facts and circumstances of the case, the learned counsel for the appellants highlighted two days delay in lodging the FIR to which •the learned APP has explained that the matter was referred to village Panchayat where the father of the prosecutrix P.W.1 was advised to institute police case for redressal. It was held by the Supreme Court of India in State of Punjab vs. Ramdev Singh, reported in 2004 AIAR (Criminal) 8; "Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the same would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, same cannot by itself be a ground for disbelieving and discarding the entire prosecution version." In State of Rajasthan vs. Noore Khan reported in 2000(3) Supreme 70 the Apex Court held; "The absence of visible marks of injuries on the person of the prosecutrix on the date of her medical examination would not necessarily mean that she had not suffered any injuries or that she had offered no resistance at the time of commission of the crime. Absence of injuries on the person of the prosecutrix is not necessarily an evidence of falsity of the allegation or an evidence of consent on the part of the prosecutrix. Absence of injuries on the person of the prosecutrix is not necessarily an evidence of falsity of the allegation or an evidence of consent on the part of the prosecutrix. It will all depend on the facts and circumstances of each case." 15. Much argument was advanced that conviction of the appellant under section 376(2)(g) was not maintainable as the charge against them was framed for the lighter section under 376 IPC and in this manner they have been highly prejudiced. I find that neither the prosecution at the initial stage proposed charge against the appellants under Section 376(2)(g) IPC nor the court took judicial notice to the fact that there was prima facie material on the record to frame charge in such section and charge was framed under section 376 IPC against the appellants. I further find that no initiative was taken for amendment of charge till pronouncement of judgment of conviction but at the same time I find that the court realized the error and convicted the appellants under section 376(2)(g) IPC. In the statements recorded under section 313 Code of Criminal Procedure, each of the appellants was confronted with the incriminating material collected during trial that he committed gang rape to his co-villager girl Saloni Kisku. 16. Section 376 IPC prescribes sentence for the offence of rape which speaks; "Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to 10 years and shall also be liable to fine; Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years." Section 376(2)(g) speaks; "Whoever commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. " 17. " 17. I find that the trial Judge after recording the judgment of conviction of appellants under section 376(2)(g) IPC sentenced each of them to undergo rigorous imprisonment for five years, much below the minimum prescribed sentence of ten years, without adequate and special reasons to be mentioned for awarding the sentence below limit. 18. I do not find that the appellants have been in any manner prejudiced if their conviction under section 376(2)(g) IPC is co-related with the sentence of 5 years rigorous imprisonment much below the prescribed limit. Though I find that the sentence as awarded to the appellants for their conviction of the offence of gang rape was inadequate but since no notice was issued to the appellants for the enhancement of their sentence or any cross appeal was preferred by the State in this regard, the sentence needs no interference. 19. The testimony of the prosecutrix P.W,\. 2 Saloni Kisku is consistent with her earlier statement before the police recorded at first point in time which inspires confidence. She identified both the appellants in the dock, who perpetuated sexual violence on her and absence of any injury on her private part or spermatozoa therein cannot be conclusive to disbelieve the veracity of the testimony of the victim who was examined by P.W. 5 Dr. Pushpalata Tudu on the third day on 25.5.2003. Similarly, non-examination of the Investigating Officer has in no manner prejudiced the defence of the appellants. The prosecutrix in specific words testified that she had apprised the places of occurrence all in close vicinity to the Investigating Officer which was the field of Subodhan Tudu at village Godhali. She testified having produced her petticoat before the police but without seizure list. It was not the case of the prosecution that the petticoat produced by her was semen stained so as to call for the report of the Forensic Science Laboratory. I find that the testimonies of other prosecution witnesses such as P.W. 1 Shan Kisku, P.W. 3 Subodhi Murmu, P.W. 4 Neelmuni Kisku are consistent on material particulars to whom the prosecutrix Saloni Kisku had narrated the occurrence in the near proximity of the offence. Their evidence are consistent and reliable which inspire confidence and no point could be shown to disbelieve them. 20. Their evidence are consistent and reliable which inspire confidence and no point could be shown to disbelieve them. 20. In the result, I find that in the facts and circumstances from which the conclusion of guilt is sought to be drawn in the instant case by the prosecution against the appellants has been fully and satisfactorily established beyond all reasonable doubts. I do not find any ground to interfere in the judgment of conviction of appellants recorded under section 376(2)(g) IPC and quantum of sentence passed against them. 21. There being no merit, this appeal is dismissed.