S.K. SHARMA, J.:-Since both the appeals have arisen out of one common judgment, they have been heard together and are being disposed of by this judgment. 2. The appellants have preferred their respective appeal against the judgment dated 14.7.1993 passed by 4th Additional Sessions Judge, Samastipur in Sessions Trial No. 178/137 of 1992/92 whereby they have been convicted and sentenced under Sections 342, 379/34 and 376 of the Indian Penal Code to undergo rigorous imprisonment for one year, two years and seven years respectively. However, the, sentences were ordered to run concurrently. 3. Sunaina Devi (P.W. 5) gave a fardbeyan on 4.8.1991 at 11.00 A.M. alleging therein that the preceding date, she left her house at 10.00 A.M. for getting her treated at Dubha Samastipur. While she was returning to her house, it became night. So she desired to go to her father's house at village Rahmatpur and proceeded for that village. When at about 9 P.M. she reached near water Tanki of Gandak Colony, she was intercepted by two unknown persons who promised her to carry up to Rahmatpur. They brought her to another place Dharampur where she was taken to a brick constructed room which was having roof of Asbastos. She was kept inside the room and was threatened not to cry. They left her alone in the room. After about one hour, out of two, one black coloured man aged about 25-26 years came and forcibly raped her and went away. Later on second person of 25 years of age who was of fair complexion came and he also committed rape upon her under threat and went away. After some time, both person came to the room where the informant was kept and they snatched silver ornament worth Rs.1400/-. In the next morning, she started searching both the accused and when she came to a known person named Lakshmi Das (P.W.1), she narrated about the occurrence to him. The victim and said Laxmi Das went to the place of occurrence. There one person was identified and he has caught by the local people who disclosed his own name as Rajendra Sah as well as the lame of his accomplice as Raju Ram. The apprehended person confessed his guilt and he was brought to police station. Thereafter, fardbeyan of the victim was recorded upon which Laxmi Das put his signature. There one person was identified and he has caught by the local people who disclosed his own name as Rajendra Sah as well as the lame of his accomplice as Raju Ram. The apprehended person confessed his guilt and he was brought to police station. Thereafter, fardbeyan of the victim was recorded upon which Laxmi Das put his signature. The signature of Laxmi Das (P.W.1) has been marked as Ext.1 whereas the entire F.I.R. has been marked as Ext. 2. The case was registered. The victim was sent to Hospital for treatment where she was examined by the doctor. The injury report which is on record has been marked as Ext. 3. The police investigated the matter and after completion of investigation, submitted charge-sheet under Sections 376 and 379 of the Indian Penal Code. The cognizance was taken and the case was committed to the court of sessions. The trial proceeded. Charge under Sections 342, 376 and 379 of the Indian Penal Code was framed against both the accused. They pleaded innocence and preferred to face the trial. 4. It appears from the trend of the cross-examination that the defence of the appellants was that they pleaded innocence and claimed that this false case has been instituted and the instance of Laxmi Das P.W.1 with whom the appellants were not having cordial relationship. 5. In order to prove its case, the prosecution has examined altogether 8 witnesses. They are: P.W. 1 Laxmi Das, a witness of fardbeyan, P.W. 2 Lal Babu Sah, P.W. 3 Arbind Kumar Yadav, P.W. 4 Shambhu Prasad, P.W. 5 Sunaina Devi, the informant prosecutrix, P.W. 6 Ganesh Pd. Singh, the Investigating Officer, P.W. 7 Dr. (Mrs.) Mithilesh Jha and P.W. 8 Gaya Prasad Ram. 6. P.Ws. 1 and 2 have been declared hostile. P.Ws. 3, 4 and 8 are the formal witnesses. 7. P.W. 7 the is doctor who at the relevant time was posted at Sadar Hospital, Samastipur as C.A.S. and on 5.8.1991 at 6.30 P.M. he examined Sunaina Devi and found following injuries on her person. 8. Internal Examination: uterus antiverted, mobile, fornisus clear, vagina lax, hymen old ruptured, vaginal swab taken and sent for microscopical examination to see presence or absence of spermatozoa. Report of the general swab-spermatozoa not found. Hymen is ruptured due to habitual intercourse. 9. According to doctor, after 24 hours, if vagina is washed, spermatozoa may not be present. 8. Internal Examination: uterus antiverted, mobile, fornisus clear, vagina lax, hymen old ruptured, vaginal swab taken and sent for microscopical examination to see presence or absence of spermatozoa. Report of the general swab-spermatozoa not found. Hymen is ruptured due to habitual intercourse. 9. According to doctor, after 24 hours, if vagina is washed, spermatozoa may not be present. It cannot be washed due to discharged of urine. 10. P.W. 5, the prosecutrix, in her evidence has fully supported the prosecution case. She has stated that at about 9.00 P.M. when she reached near Water Tanki of Gandak Colony after purchasing medicine, two unknown persons were present there. They promised her to carry her to her parents's house at Rahmatpur village but they took her to village Dharampur and they kept her in a room which was built of bricks and roof of the room was of asbastos. This witness further stated that they left the room by threatening her not to cry. Thereafter, after one hour, one of them who was of black colour came and shut the door and he forcibly committed rape. After committing rape, he left the room and second man came and he did the same thing and escaped. Thereafter, after one hour, both came and took her silver hasuli of worth Rs. 1400/-. In the next morning, it is stated by this witness, she went to a relative named Laxmi Das at Tajpur, Samastipur and told him about the occurrence. This witness stated that Laxmi Das took her to the place of occurrence and there she saw both the accused. Out of two, one was caught by the local people who disclosed his name Rajendra Sah as well as the name of his another accomplice as Raju Ram. She thereafter went to police station alongwith P.W. 1 Laxmi Das and there her statement was recorded by Officer-in-charge upon which Laxmi Das signed. Thereafter she was sent to hospital for examination where doctor examined her. In the cross-examination, she was asked as to whether she had gone to Delhi, she replied in negative. In her cross-examination, this witness has stated that she was suffering from wound in her private part as a result of which she had run temperature for five or six days. In the cross-examination, she was asked as to whether she had gone to Delhi, she replied in negative. In her cross-examination, this witness has stated that she was suffering from wound in her private part as a result of which she had run temperature for five or six days. This witness has stated that the distance of Rahmatpur from Samastipur is about 2 miles and rickshaw is available to cover the distance but she had no money left with her because she had spent her money in purchasing medicine. 11. P.W. 6 is the Investigating Officer of the case. He has stated that P.W.1 has described about the manner of occurrence which he learnt from the informant. This witness had visited the place of occurrence and he has stated in detail in his evidence which corroborate the prosecution case. 12. Learned counsel for the appellants has submitted that the alleged sexual intercourse with the informant was with her consent and as such the appellants cannot be held guilty for such offence. 13. In this connection, it would be better to quote Section 114A of the Evidence Act which is as follows: "114A. Presumption as to absence of consent in certain prosecutions for rape.-In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of Section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent." 14. The informant has come to court to narrate the occurrence. Section 114A of the Evidence Act indicates that the court shall presume that it was not consent if a woman is alleged to have been raped and she states in her evidence before the court that she did not give consent. 15. The specific case of the prosecutrix in the F.I.R. and in her evidence is that she was taken by the accused persons on the pretext to get her to her parents' house but she was taken to other place and locked inside a room and thereafter on threat of force she was raped. 15. The specific case of the prosecutrix in the F.I.R. and in her evidence is that she was taken by the accused persons on the pretext to get her to her parents' house but she was taken to other place and locked inside a room and thereafter on threat of force she was raped. The case of the prosecutrix of committing rape upon her by the appellants has been proved and as such the defence of false implication by the informant at the behest of P.W. 1 and other defence that rape was committed with the consent of the prosecutrix has no force. 16. It has further been argued that the evidences of other witnesses including doctor do not corroborate the allegation and it will not be proper to convict the appellants on the basis of sole testimony of the prosecutrix. 17. It appears that the prosecutrix was medically examined after 20 hours of the occurrence and during that period she had occasion to go to a number of places or engaged in her day-to-day works and for attending natural calls. So after long lapse of time, it is common that medical evidence of rape might vanish and which has vanished in the present case. As such, non-corroboration of evidence of doctor does not disprove the evidence of the prosecutrix. So I am of the view that the prosecution has been able to prove the charges under Sections 342 and 376 of the Indian Penal Code against the appellants. 18. After analysing the evidences, it appears that there are some contradictions so far the evidence on the charge under Section 379 of the Indian Penal Code is concerned. The prosecutrix has given different version in her F.I.R. as well as in her evidence. The prosecutrix in her evidence has stated that she had left no money with her because all the money were spent in purchasing medicines. So it appears that the prosecutrix has exaggerated the story of theft. So I am of the view that the prosecution has not been able to prove the charge of theft beyond the shadow of all reasonable doubt. Accordingly, the appellants are entitled to be acquitted under Section 379/34 of the Indian Penal Code and I acquit them from the charge under Section 379/34 of the Indian Penal Code. 19. So I am of the view that the prosecution has not been able to prove the charge of theft beyond the shadow of all reasonable doubt. Accordingly, the appellants are entitled to be acquitted under Section 379/34 of the Indian Penal Code and I acquit them from the charge under Section 379/34 of the Indian Penal Code. 19. Taking into consideration the entire evidences, I am, of the view that the prosecution has been able to prove the charges under Sections 342 and 376 of the Indian Penal Code. Accordingly, the conviction and sentence of the appellants under these two sections does not suffer from any illegality and the same is maintained. 20. In the result, both the appells (Cr. Appeal Nos. 245 and 271 of 1993) are dismissed. The judgment of conviction and sentence of the appellants passed by the court below is upheld with some modification, as stated above. The bail bonds of the appellants are cancelled. The appellants are directed to surrender before the court below to serve out remaining period of sentence. The court below is also directed to take coercive steps to take them into custody.