K. S. JHAVERI, J. ( 1 ) ALL these appeals arise out of the impugned judgment and order and therefore, they are disposed of by this common judgment. 1. 0 Criminal Appeal Nos. 459/2006 and 235/2006 have been preferred by original accused Nos. 1 and 2 respectively against the impugned judgment and order dated 7/2/2006 passed by the learned Presiding officer, Fast Track Court No. 4. Gandhinagar in Sessions Case No. 21/2005, whereby, both original accused Nos. 1 and 2 have been convicted for the offence punishable u/s. 366 IPC. Apart from conviction u/s. 366 IPC, original accused no. 1 has also been convicted for the offence punishable u/s. 376 (g) IPC. 1. 1 For conviction u/s. 366 IPC, both original accused Nos. 1 and 2 have been sentenced to undergo R. I. for five years with fine of Rs. 2000/- and Rs. 5000/-respectively and in default of payment of fine, both have been directed to undergo s. I. for a further period of one month. For conviction u/s. 376 (g) IPC, original accused no. 1 has been sentenced to undergo R. I. for ten years with fine of Rs. 5000/- and in default of payment of fine, S. I. for a further period of one month. Both the sentences were ordered to run concurrently for original accused No. 1. The accused were also given the benefit of set-off. Out of the fine amount that may be received from the accused, an amount of Rs. 5000/- was ordered to be paid to the victim. 1. 2 Criminal Appeal No. 1290/2006 is preferred by the State for enhancement of the sentence imposed on original accused no. 1, whereas. Criminal Appeal No. 1327/ 2006 has been preferred for enhancement of the sentence imposed on original accused no. 2. ( 2 ) THE facts in brief of the prosecution case are as under; (1) The complainant was residing along with her family, consisting of her parents, two sisters and one brother in the residential quarters of Gujarat Housing Board situated in Chandkheda area of Gandhinagar City. The father of the complainant, Ghevarchand nenaji Tavar, was doing miscellaneous electrical work, whereas, her mother, sagunaben, apart from doing house-hold work, also used to purchase/sell old clothes in a mobile shop. Amongst the three daughters, the complainant is the eldest and had studied up to 7th standard. The father of the complainant, Ghevarchand nenaji Tavar, was doing miscellaneous electrical work, whereas, her mother, sagunaben, apart from doing house-hold work, also used to purchase/sell old clothes in a mobile shop. Amongst the three daughters, the complainant is the eldest and had studied up to 7th standard. (2) Both the accused were residing in the same locality, whereas, original accused no. 2 was residing in the neighborhood of the complainant and was also known to her entire family. During the relevant time, the family of the complainant had no telephone connection in their house and since original accused No. 2 was having a telephone connection in her house and both the families were known to each other, the family of the complainant used to utilize the said telephone for attending telephone calls received for them at original accused No. 2 residence. (3) On 7/9/2004, at around 1230 hrs. , the complainant was alone in her house. During that time, original accused No. 2 gave a call asking the complainant to come to her house. The complainant felt that some telephone call for them might have been received and therefore, she went to the house of original accused No. 2. When she reached her house, original accused No. 2 asked her to bring an amount of Rs. 20,000/- from her house. The complainant informed her that she could not arrange for the said amount as her parents were not present in the house. However, ultimately, the complainant agreed and she brought an amount of Rs. 20,000/- from her house. (4) Thereafter, original accused No. 2 took the complainant to Jantanagar Bus-stand where original accused No. 1 was waiting. Original accused No. 2 asked the complainant to be in the company of original accused No. 1 and left the place. Later, original accused No. 1 hired an auto-rickshaw and instructed the complainant to accompany him in the said auto-rickshaw. The complainant followed his instructions and boarded the said auto-rickshaw. They both went to the main bus-depot of ahmedabad City and boarded a bus for udaipur, Rajasthan. 2. 5 During the journey, original accused No. 1 took away the amount of rs. 20,000/- from the complainant, which she had brought from her home. At around 2000 hrs. , they reached Udaipur. At udaipur. original accused No. 1 took the complainant to a vacant house belonging to one of his friends. 2. 5 During the journey, original accused No. 1 took away the amount of rs. 20,000/- from the complainant, which she had brought from her home. At around 2000 hrs. , they reached Udaipur. At udaipur. original accused No. 1 took the complainant to a vacant house belonging to one of his friends. After they reached there, original accused No. 1 committed rape on her. Thereafter, he left the house on the pretext of purchasing a bottle of drinking water. Around five minutes thereafter, two persons entered the room and closed the door from the inside and alternatively, the said two persons also committed rape on the complainant-prosecutrix and thereafter, they went to an adjacent house where a lady was residing. (6) Some time later, original accused no. 1 returned and he also went to the adjacent house where the said two persons had gone. Thereafter, original accused No. 1 and the said two persons entered into some conversation, during which time, they also consumed liquor in the presence of the said lady. From their conversation, the complainant-prosecutrix felt that they shall forcibly involve her into a flesh trade. Therefore, on the next day, i. e. on 8/9/2004, at around 0500 hrs. , while original accused No. 1 and the said two persons were asleep, the prosecutrix left the house and boarded a bus for Ajmer, rajasthan. After reaching Ajmer, in the evening hrs. , the prosecutrix boarded a bus for Ahmedabad. On the next day, i. e. on 9/9/2004, in the morning hours, the prosecutrix reached her home at ahmedabad. (7) In the meanwhile, on 8/9/2004. the parents of the complainant-prosecutrix had filed a complaint of 'missing person' qua the complainant before Chandkheda police Out-post. In pursuance of the 'missing person' complaint given by her parents, the statement of the complainant-prosecutrix came to be recorded by the police on 16/9/2004. (8) Ultimately, on 30/9/2004. a complaint in connection with the alleged offence came to be filed against the accused persons before Adalaj Police Station, which came to be registered as CR. No. 1-235/ 2004 u/s. 366, 376 (g) and 114 IPC. Necessary preliminary investigation was carried out. The clothes worn by the prosecutrix at the relevant time were seized. She was also sent for medical examination. (9) Further investigation was carried out and statements of several witnesses were recorded. No. 1-235/ 2004 u/s. 366, 376 (g) and 114 IPC. Necessary preliminary investigation was carried out. The clothes worn by the prosecutrix at the relevant time were seized. She was also sent for medical examination. (9) Further investigation was carried out and statements of several witnesses were recorded. During the course of investigation, as cogent evidence was found against the accused, they were arrested and after following requisite procedure, they were sent to judicial custody. Original accused No. 1 was also sent for medical examination. The muddamal articles were sent to FSL for examination. On receipt of all the reports, they were kept along with the investigation papers. 2. 10 At the end of investigation, chargesheet was filed against the accused before the concerned JMFC. However; as the case was sessions triable, the same was committed to Sessions Court, Gandhinagar. On production of the accused, charge was framed but, as they pleaded not guilty, trial i was initiated. (11) To prove the guilt of the accused persons, the prosecution had examined eleven witnesses, viz. PW-1 Sushilaben kanubhai at Ex. 9, PW-2 Pantiben naranbhai at Ex. 12, PW-3 Maheshbhai H. Patel at Ex. 14, PW-4 Sagunaben ghevarchand at Ex. 20. PW-5 Dr. Gitanjali kukan at Ex. 21, PW-6 Paramjit N. Barua at ex. 25, PW-7 Ghevarchand N. Tavar at ex. 28. PW-8 Rajnikant Narendrakumar at ex. 36, PW-9 Kabhsinh Ratansinh Pagi at ex. 43. PW-10 Kanaiyalal Shankarbhai at ex. 45 and PW-11 Shaktisinh ghanshyamsinh at Ex. 49. (12) The prosecution had also relied upon several documentary evidence, more particularly, the complaint at Ex. 10, the school Leaving Certificate of the prosecutrix at Ex. 11, the physical condition of the prosecutrix at Ex. 13, the physical condition of original accused No. 1 at Ex. 15, the medical certificate of prosecutrix at ex. 23, the medical certificate of original accused No. 1 at Ex. 27 and the F. S. L. Report at Ex. 37. The defence had also examined Kanabhai Bhurabhai Rathod as dw-1 at Ex. 67 in support of its case. (13) At the end of trial, the Court below convicted the accused persons for the alleged offence and imposed sentence, as narrated in the earlier part of this judgment. Being aggrieved by the impugned judgment and order, the present appeals have been preferred. ( 3 ) MRS. 67 in support of its case. (13) At the end of trial, the Court below convicted the accused persons for the alleged offence and imposed sentence, as narrated in the earlier part of this judgment. Being aggrieved by the impugned judgment and order, the present appeals have been preferred. ( 3 ) MRS. Shilpa R. Shah, learned advocate appearing on behalf of original accused No. 1, has submitted that the Court below has committed serious error in convicting original accused No. 1 for the alleged offence. 3. 1 Learned Advocate has submitted that at the time when the alleged incident took place, the prosecutrix was above 18 years of age and the fact that the complaint in question came to be filed after a long delay of 21 days clearly shows that the same was an after-thought. 3. 2 Learned Advocate has further submitted that even if sexual intercourse had taken place, the same was with the free will and consent of the prosecutrix. 3. 3 Learned Advocate has next submitted that the evidence led by the defence witness, Kanabhai Bhurabhai rathod, who has been examined as DW-1 at Ex. 67, reveals a completely different story of the prosecution case. The evidence of the prosecutrix is not found to be reliable as it suffers from several contradictions. Therefore, looking to the entire oral as well as documentary evidence on record, this is a fit case wherein original accused No. 1 deserves to be acquitted from the alleged offence on the ground of benefit of doubt. 3. 4 Learned Advocate has drawn our attention to the science relating to seminal fluid by placing reliance upon Reddy's medical Jurisprudence, more particularly, on the issue of 'motility of sperms'. She has submitted that in living persons, motile sperms are usually seen up to six hours and rarely 12 hours after ejaculation into the vagina. Complete sperms are seen up to 26 hours and occasionally up to two to three days. Spermatozoa may be found up to a fortnight in the uterine cavity. Relying upon the aforesaid science, learned Advocate has submitted that when the prosecutrix was medically examined on 30. 09. 2004 i. e. after a period of more than 15 days, no spermatozoa would be found in her private parts. Spermatozoa may be found up to a fortnight in the uterine cavity. Relying upon the aforesaid science, learned Advocate has submitted that when the prosecutrix was medically examined on 30. 09. 2004 i. e. after a period of more than 15 days, no spermatozoa would be found in her private parts. Therefore, it is evident that the complaint has been maliciously filed only with a view to harass original accused No. 1 or to achieve some other oblique motive. ( 4 ) MR. K. J. Shethna, learned Advocate for original accused No. 2, over and above the submissions made by Mrs. Shilpa R. Shah for original accused No. 1, has submitted that original accused No. 2 has been falsely implicated in the alleged offence. He has submitted that there is not an iota of evidence on record to connect original accused No. 2 with the alleged offence in any manner whatsoever. 4. 1 Learned Advocate has further submitted that the prosecution has failed to prove the existence 'of the essential ingredients for constituting an offence u/s. 366 IPC. Hence, the Court below ought not to have convicted original accused No. 2 for the offence punishable u/s. 366 IPC. 4. 2 Learned Advocate appearing for original accused No. 2 has relied upon a decision of the Apex Court in the case of jinish Lal Sah v. State of Bihar reported in (2003) 1 S. C. C. 605, wherein, it has been held that to establish charge u/s. 366 ipc. there should be acceptable evidence to show that the girl was compelled to marry the accused against her will and/or was forced to or induced to intercourse against her will. 4. 3 Another decision relied upon is in the case of Gabbu v. Slate of M. P. reported in (2006) 5 S. C. C. 740, wherein, it has been held that for applicability of section 366 IPC, mere abduction is not enough and that the prosecution must further prove that the abduction was for the purposes mentioned in Section 366 IPC. 4. 4 Learned Advocate has submitted that the prosecution has failed to prove beyond reasonable doubt that the essential ingredients for attracting the penal provisions of Section 366 IPC are present in this case and therefore, the impugned judgment and order convicting original accused No. 2 u/s. 366 IPC deserves to be quashed and set aside. ( 5 ) MRS. 4. 4 Learned Advocate has submitted that the prosecution has failed to prove beyond reasonable doubt that the essential ingredients for attracting the penal provisions of Section 366 IPC are present in this case and therefore, the impugned judgment and order convicting original accused No. 2 u/s. 366 IPC deserves to be quashed and set aside. ( 5 ) MRS. M. L. Shah, learned APP appearing on behalf of the State, has submitted that the complaint in question at ex. 10 and the oral evidence of the prosecutrix clearly establish the guilt of both the accused persons. She has submitted that from the oral evidence on record it is apparent that the accused persons had abducted the prosecutrix and had seduced her to illicit intercourse. Therefore, the court below was completely justified in convicting the accused persons. (1) Learned APP has further submitted that it is true that the complaint in question came to be filed after some delay. However, if the evidence of the prosecutrix is gone into minutely, the same would be found to be reliable. In sexual offences, delay is not a material aspect since it brings in questions of morality and chastity of the victim and therefore, the initial hesitation and delay is understandable. Therefore, in the present case, the delay in filing the complaint in question would not have any bearing on the merits of the case. (2) In support of the above submission, learned APP has relied upon a decision of the Apex Court in the case of State of rajasthan v. Shri Narayan reported in (1992) 3 S. C. C. 615, wherein, it has been held that delay in lodging FIR is not a factor casting doubt on prosecution story in view of the generally known fact that the rape victim or her husband would hesitate to approach the police. Similar principle has also been laid down in another decision of the Apex Court in the case of Bhupinder singh v. Union Territory of Chandigardh reported in (2008) 8 S. C. C 531 and also in a recent decision of the Apex Court in the case of State of Himachal Pradesh v. Prem Singh reported in (2009) 1 S. C. C. 420. Learned APP has, therefore, submitted that delay in filing the FIR in sexual offences cannot be equated with the case involving other offences. Learned APP has, therefore, submitted that delay in filing the FIR in sexual offences cannot be equated with the case involving other offences. (3) She has, however, submitted that so far as the sentence part is concerned, the same is on the lesser side and looking to the gravity of offence, the Court below ought to have imposed a much stringent punishment. Hence, the sentence imposed by the Court below deserves to be enhanced qua both the accused persons. ( 6 ) WE have heard learned Counsel for the respective parties and have perused the oral as well as documentary evidence on record. It is a matter of record that the prosecutrix went missing from her house in the noon hours of 7/9/2004. The document on record at Ex. 11 is the School leaving Certificate of the prosecutrix, which is a conclusive piece of evidence for the purpose of ascertaining the age of a person. In the said document, the date of birth has been shown as 31/8/1986. Even otherwise, the said date of birth has not been disputed by the prosecution. Therefore, admittedly and evidently, on the day when the prosecutrix went missing from her house, she was more than 18 years of age. ( 7 ) THE prosecutrix has been examined as PW-1 at Ex. 9. We have minutely examined her evidence and we find that there are umpteen dubious distinctions in it. 7. 1 To begin with, in her examination-in-chief, the prosecutrix has deposed that on the date of the alleged incident, original accused No. 2 came to call her under the pretext that a telephone-call was received for her and that when she went to the house of original accused No. 2, she found that the phone was off. The prosecutrix further goes to say that at that time an amount of rs. 20,000/- was asked for by original accused No But, she informed her as to from where she would bring the said amount as her parents were also not present in the house. Ultimately, on the insistence of original accused No. 2, she brought rs. 20,000/- from her house. Thereafter, original accused No. 2 asked her to accompany her. 7. 20,000/- was asked for by original accused No But, she informed her as to from where she would bring the said amount as her parents were also not present in the house. Ultimately, on the insistence of original accused No. 2, she brought rs. 20,000/- from her house. Thereafter, original accused No. 2 asked her to accompany her. 7. 2 Here, it would be pertinent to note that in her cross-examination, the prosecutrix has stated that before the alleged incident had taken place, she had never gone to the house of original accused no. 2. Now, if we read the above evidence in the context of what has been stated by the prosecutrix in her examination-in-chief, it becomes clear that the prosecutrix has tried to create a picture, whereby, she had gone to the house of original accused No. 2 on account of the call, given to her by original accused No. 2. The said aspect is further strengthened by the fact that in the very next breath, the prosecutrix has stated in her cross-examination that when any telephone-calls were received for them at original accused No. 2s' residence, she used to attend the same. Thus, the evidence of the prosecutrix is contradicted on this point. 7. 3 Apart from that the say of the prosecutrix that she had informed original accused No. 2 that from where she would bring the amount of Rs. 20,000/-, particularly, when her parents had gone out and subsequently, upon insistence by original accused No. 2, she succumbed to the pressure and brought Rs. 20,000/- from her house, creates serious doubts in our minds about the genuineness of her evidence. Now, even if we believe the said say to be true, it is pertinent to note that the amount of Rs. 20,000/- had remained with the prosecutrix only and not a single penny from the said amount was taken by original accused No. 2. 7. 4 It would be relevant to note that to a question put by the Court below during her cross-examination, the prosecutrix has replied that she and original accused No. 2 had no relations. If that be so, then she would not have brought an amount of rs. 20,000/- from her house on the pretext of succumbing to the pressure applied by original accused No. 2 at the relevant point of time. If that be so, then she would not have brought an amount of rs. 20,000/- from her house on the pretext of succumbing to the pressure applied by original accused No. 2 at the relevant point of time. Thus, on the above point also, the evidence of the prosecutrix gets contradicted. ( 8 ) ANOTHER notable aspect which has come out from the evidence of the prosecutrix is that on 08. 09. 2004 she had a telephonic talk with her grand-mother. It may be noted that on the said day, the prosecutrix was away from her house and had made the said telephone call from rajasthan. It is the prosecution case that as the prosecutrix was very much frightened at that time, she did not say anything about the alleged incident to her grand-mother when she had made the said telephone call. The only message that was conveyed by the prosecutrix to her grand-mother was that she would be reaching her house at ahmedabad very soon. (1) It is evident from the record that when the aforesaid telephone call was made by the prosecutrix, no one was in her company, i. e. neither original accused No. 1 nor the said two persons who had allegedly committed gang rape on her. Apart from that the said telephone call was being made from a place away from the house where the prosecutrix was allegedly detained by original accused No. 1. Moreover, she had made the said call from a place which was totally unknown for her. (2) Had the prosecutrix actually been a victim of the alleged offence, then she would have definitely informed about the same to her parents or to any of her relatives, at the first available opportunity. (3) The fact that the prosecutrix had traveled in the company of original accused no. 1 at different places, by public transport, as per her own say and that she had also stayed in a busy locality at Udaipur but, had not raised any alarm during the entire period while she was in the company of original accused No. 1 goes to show as to how much truth is there in her evidence. 1 at different places, by public transport, as per her own say and that she had also stayed in a busy locality at Udaipur but, had not raised any alarm during the entire period while she was in the company of original accused No. 1 goes to show as to how much truth is there in her evidence. If the alleged incident had actually taken place, the prosecutrix could have lodged a complaint in that connection, either at Udaipur or at ajmer, at the first available opportunity, more particularly, when she is a original resident of the State of Rajasthan or at ahmedabad, after reaching her home on 09. 09. 2004. But, that has not been done and the complaint in question came to be filed only on 30. 09. 2004, i. e. after a period of 21 days. Learned APP is not in a position to explain the aforesaid delay caused in filing the complaint. (4) Apart from that it is very difficult to believe that a woman, who has lost her pride and honor in a barbaric act, has not disclosed the same to any one, particularly, when she had allegedly secured freedom after one dreadful night and had, thereafter, found herself to be at a place, which was hundreds of kilometers away from her house and also when she had a telephonic conversation with one of her close relatives. (5) Moreover, we find that there is contradiction between the complaint at ex. 10 and the evidence of the prosecutrix before the Court below on the issue of the manner in which the alleged act was done. From the evidence of the prosecutrix before the Court below, it has come out that in the room in which original accused No. 1 had allegedly taken the prosecutrix, after reaching Udaipur, no physical force was applied on her either by tying down her hands or legs. However, no such averment was made in the complaint filed by her at ex. 10. Thus, on material aspect of the case, the evidence of the prosecutrix is contradicted. ( 9 ) AS stated herein above, the complaint at Ex. 10 came to be filed on 30. 09. 2004, i. e. after a period of 21 days. It is the say of the prosecutrix as also her relatives that the police had not registered the offence though it was reported to them immediately. ( 9 ) AS stated herein above, the complaint at Ex. 10 came to be filed on 30. 09. 2004, i. e. after a period of 21 days. It is the say of the prosecutrix as also her relatives that the police had not registered the offence though it was reported to them immediately. However, the said say of the prosecution has been contradicted by the evidence led by PW-9 Kabhsinh Ratansinh pagi at Ex. 43, who was discharging his duties at Chandkheda Police Out-post during the said period. ( 10 ) THE contemporaneous evidence on record in the nature of applications given by the close relatives of the prosecutrix, viz. Exs. 30 and 31, narrates an altogether different story to what has been stated by the prosecutrix in the complaint as also in her evidence before the Court below. The application at Ex. 30 was made by the brother-in-law of the father of the prosecutrix, whereas, the application at ex. 31 was made by the father of the prosecutrix. In both these applications, it is stated that the prosecutrix was induced by original accused No. 1 to elope with him by giving a promise of marriage. It is further stated in the said applications that after the prosecutrix was taken to Udaipur, two muslim boys had committed rape on the prosecutrix. It is also stated that the father of original accused No. i had come to the house of the prosecutrix and had threatened them of dire consequences for which a complaint was also filed before Chandkheda police Station on 12. 09. 2004. 10. 1 It is pertinent to note that the aforesaid story, i. e. the story with regard to inducement given by original accused No. 1 to elope with him by giving a promise of marriage and also with regard to issuance of threat by the father of original accused no. 1, does not find any place either in the complaint given by the prosecutrix or in her evidence before the Court below. Thus, the case of the prosecution suffers from the vice of omissions and contradictions. ( 11 ) IT is true that unlike other offences, in sexual offences, delay is understandable because there are several factors which weigh in the mind of the victim and her family members before coming to the police station to lodge a complaint. Thus, the case of the prosecution suffers from the vice of omissions and contradictions. ( 11 ) IT is true that unlike other offences, in sexual offences, delay is understandable because there are several factors which weigh in the mind of the victim and her family members before coming to the police station to lodge a complaint. But, such delay can be over-looked only if the evidence of the victim is found to be reliable and trustworthy. 11. 1 In the present case, as discussed herein above, there is a delay of 21 days in filing the complaint. Now, even if we ignore the said delay, the fact remains that the evidence of the prosecutrix, for -reasons discussed in the foregoing paragraphs, is not found to be reliable. . No cogent is coming on record so as to connect the accused with the alleged offence in any manner whatsoever. 11. 2 Initially, as discussed herein above, the parents of the prosecutrix had filed a 'missing person' complaint and it was only when the complaint in question came to be filed on 30. 09. 2004 that original accused No. 2 was joined as an accused. Before that, even in the statement of the prosecutrix recorded before the police on 16. 09. 2004, in pursuance of the 'missing person' complaint filed by her parents, no covert act has been attributed on original accused No. 2. 11. 3 So far as original accused No. 1 is concerned, the prosecutrix has narrated different things at different places qua him. In her said statement recorded before the police on 16. 09. 2004, the prosecutrix has narrated something different in comparison to what she had averred in the complaint filed by her on 30. 09. 2004. Again, in her evidence before the Court below, her evidence gets contradicted on several material aspects of the case. In our opinion, such contradictions are fatal to the prosecution case and no conviction could be sustained. Thus, qua both the accused persons, the evidence of the prosecutrix is not found to be reliable and trustworthy. Therefore, the principle laid down in the decisions relied upon by the learned APP though being a good law, will not apply to the case on hand, in view of the evidence discussed herein above. Thus, qua both the accused persons, the evidence of the prosecutrix is not found to be reliable and trustworthy. Therefore, the principle laid down in the decisions relied upon by the learned APP though being a good law, will not apply to the case on hand, in view of the evidence discussed herein above. ( 12 ) IT is a well settled law that to constitute an offence u/s. 366 IPC, it is necessary for the prosecution to prove that the accused induced the woman or compelled by force to go from any place and that such inducement was by deceitful means and that such abduction took place with the intent that the woman may be seduced to illicit intercourse and/or that the accused knew it to be likely that the woman may be seduced to illicit intercourse as a result of her abduction. ( 13 ) IN the present case, we do not find that any of the accused persons had given any kind of inducement to the prosecution or that the prosecutrix was compelled by force to go to Udaipur with the intent to seduce her to illicit intercourse. The prosecutrix had gone with original accused no. 1 to Udaipur at her own free will and consent and no ingredients of the offence u/s. 362 IPC are present. ( 14 ) EVEN if we find that the prosecutrix was abducted, the same is not enough as the prosecution also has to prove that she was abducted with the intent that she shall be compelled or knowing it to be likely that she will be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. Unless the prosecution proves that the abduction is for the purposes mentioned in section 366 IPC, the accused cannot be held guilty for the said offence. We find the act to be a consensual one and no ingredients to bring the act within the mischief of 366 IPC appear to be present. Thus, the Court below has grossly erred in convicting the accused persons for the offence punishable u/s. 366 IPC. ( 15 ) SO far as the offence punishable u/s. 376 IPC is concerned, as discussed herein above, we find the same to have been done with consent. Thus, the Court below has grossly erred in convicting the accused persons for the offence punishable u/s. 366 IPC. ( 15 ) SO far as the offence punishable u/s. 376 IPC is concerned, as discussed herein above, we find the same to have been done with consent. It is a matter of record that the prosecutrix was above 18 years of age at the time when the alleged incident took place. Therefore, under no circumstances, original accused No. 1 could be convicted for the offence punishable u/s. 376 (g) IPC. ( 16 ) MOREOVER, the prosecution has not been able to establish the panchnama of the scene of offence. It is pertinent to note that the prosecutrix was not even able to identify or locate the place where she was allegedly gang-raped by original accused No. 1 and two other unknown persons, which also creates doubts in our minds about the veracity of her evidence. The F. S. L. Report at Ex. 39 also not show the involvement of the accused in the alleged offence. Even otherwise, the entire case rests upon circumstantial evidence and the prosecution has not been able to prove the chain of circumstances which shall lead us to the only conclusion pointing towards the guilt of the accused persons. ( 17 ) THE prosecutrix was medically examined on 30. 09. 2004. Her medical case-papers and the Certificate issued by the medical Officer, Community Health Centre. Chandkheda, Gandhinagar have been produced on record vide Exs. 22 and 23 respectively. From the said two documents, we find that the prosecutrix had three nail marks present over the back-portion of her body. Except the said injuries, the prosecutrix had no injury over any other part of her body. 17. 1 Keeping in mind the version of the prosecutrix that she had been forcibly involved into sexual intercourse, firstly, by the original accused No. 1 and thereafter, by two unknown persons, alternatively and that to for two times each, it is difficult to believe that she had no injury mark/s over any other part of her body. The said injuries, i. e. the three nail marks, found during her medical examination could be caused while doing routine domestic works as it is highly unbelievable that a victim of gang-rape would have sustained the above-narrated injuries only. 17. The said injuries, i. e. the three nail marks, found during her medical examination could be caused while doing routine domestic works as it is highly unbelievable that a victim of gang-rape would have sustained the above-narrated injuries only. 17. 2 We firmly agree with the science related to the motility of sperms brought to our notice by the learned Counsel by showing an extract from Reddy's book on Medical jurisprudence. At the most, spermatozoa could be found up to a fortnight in the uterine cavity and not beyond that period. The presence of spermatozoa in the vagina after intercourse has been reported by Pollak (1943) from 30 minutes to 17 days and by morrison (1972) up to 9 days in vagina and 12 days in the cervix. Considering the science related to the motility of sperms in the background of the fact that the complaint in question came to be filed after a delay of 21 days, we are of the opinion that this is a case instituted maliciously with a view to achieve some ulterior oblique motive by falsely implicating the accused persons in the alleged offence. ( 18 ) IN view of the above discussion, we are of the opinion that the Court below has committed serious error in law and also on facts in convicting the accused persons for the alleged offence. We find that the findings recorded by the Court below are unjust and improper and are required to be quashed and set aside. ( 19 ) FOR the foregoing reasons, Criminal appeal Nos. 235/2006 and 459/2006 are allowed. The impugned judgment and order passed by the Court below is quashed and set aside. The original accused are acquitted of the offences for which they stood charged. They are on bail and therefore, their bail bonds stand cancelled. Sureties, if any, stand discharged. Fine, if any, paid by the accused persons shall be refunded. Criminal Appeal nos. 1290/2006 and 1327/2006 preferred by the State are, accordingly, dismissed. R and P, if lying with this Court, be sent back to the court below forthwith. (Appeal are allowed)