JUDGMENT : - Hon'ble RAFIQ, J.—This appeal is directed against judgment dated 17.12.2003 of learned Additional District & Sessions Judge (Fast Track) Behror, in Sessions Case No.66/2003 (29/2003), whereby all four accused-appellants, namely, (1) Dholya @ Rajendra, (2) Lalaram, (3) Sunil @ Sunya @ Rajendra and (4) Guddu @ Rakesh, have been convicted for offence under Section 376(2)(g) and sentenced to undergo life imprisonment with fine of Rs.1000/- each, in default of payment of fine, they were to further undergo three months simple imprisonment. They have been also convicted for offence under Sections 363 and 366A IPC, and for each offence they have been sentenced to undergo three years rigorous imprisonment with payment of fine of Rs.300/- each. In default of payment of fine, they were to further undergo two months simple imprisonment. All the sentences were ordered to run concurrently. 2. Facts giving rise to this appeal are that a written report (Exhibit P-5) was submitted by one Minakshi with Police Station Shahjahanpur on 23.04.2003 alleging therein that she had gone to the jungle for answering the call of nature around 7.00 pm on 22.04.2003. While returning back when she reached near the house of Sarpanch, accused Guddu @ Rakesh Meena called her from behind and asked her to stay. When she turned back, three more boys were standing there. They were Dholya @ Rajendra S/o Dhundmal, Lalaram S/o Bheinram and Sunil @ Sunya @ Rajendra S/o Udharam. All these four accused forcibly caused her to sit in a jeep and inside the jeep they tied her mouth with her 'chunni'. Thereafter, they took her to jungle near a hill, where they, one after another committed rape upon her one after another. They asked her not to disclosed this to anyone. They threatened that if she disclosed this incident to any of her family members, they would murder her and her parents. The accused then brought her to the playground of Senior Secondary School, where they warned her not to tell this incident to anyone and caused her to sit in the jeep silently. So soon they came out of the ground of the school, they saw her uncle (tauji) and Shishupal searching for her. Her uncle and Shishupal followed the jeep on their motorcycle and intercepted it. They got her freed from the clutches of accused. They took her with them to her house. So soon they came out of the ground of the school, they saw her uncle (tauji) and Shishupal searching for her. Her uncle and Shishupal followed the jeep on their motorcycle and intercepted it. They got her freed from the clutches of accused. They took her with them to her house. Action be taken against the culprits. 3. On the basis of aforesaid written report, the police registered a regular first information report being FIR No.79/2003 (Ex.P/6), for offence under Secs. 376(2)(g), 366, 34 IPC and investigation commenced. Challan against the accused-appellants was filed for the offence. The trial court framed the charges against the accused for offence u/Secs. 363, 366(a), 376(2)(g) of the IPC. Accused denied the charges and claimed to be tried. During the trial, the prosecution examined 11 witnesses and got 34 documents exhibited, whereas defence produced four witnesses, but did not get any document exhibited. 4. The trial court on conclusion of the trial and after hearing the arguments of the parties, convicted and sentenced the accused-appellants in the manner indicated above. 5. We have heard Smt. Pradeep Lata Mathur for accused-appellants no1 to 3, Shri Subhash Sharma for accused-appellant no.4 and Shri Javed Choudhary, learned Public Prosecutor for the State. 6. Smt. Pradeep Lata Mathur and Shri Subhash Sharma, learned counsel for the appellants, argued that the testimony of prosecutrix Minakshi (PW-1) in the present case clearly show that it was a case of consent. Learned counsel argued that the manner in which the prosecutrix has narrated the story, makes it clear that she was a consenting party and she knew all the accused from before. She has though alleged forcible rape upon her by the accused but there is no sign or mark of resistance inasmuch as she has not sustained even a single abrasion on any part of her body. Learned counsel, referring to the site-plan (Exhibit P-21), submitted that the police has prepared the site-plan of the place where rape was allegedly committed upon the prosecutrix in a jeep but no site-plan was prepared of the place wherefrom she was allegedly abducted and thereafter, of the playground of senior secondary school where the prosecutrix was brought back by the accused. Both these places were surrounded by the 'abadi' The facts that the prosecutrix did not raise any hue and cry when she was being taken by the accused and when she was brought back, are suggestive of the fact that she was a consenting party. 7. Learned counsel referred to the statement of Dr. Suniti Verma (PW-9), and argued that she has categorically proved that there were no injury marks on the private parts of the body of the prosecutrix. There was neither any discharge nor staining on her body. Her vagina was found admitting two fingers easily and uterus was of normal size. The hymen was found raptured for quite some time and she was found to be habitual of intercourse for last one to two years. Dr. Suniti Verma (PW-9), in her cross-examination, has stated that in the case of forcible intercourse, the bleeding and swelling on the vagina part was quite natural, which was found absent. In cross-examination, she further admitted that if rape is committed upon the prosecutrix on a hard surface and if she poses resistance, it is natural that she would sustain injuries on her buttock or at the back. This witness has admitted that the prosecutrix had 28 teeth. It is argued that this would not be possible unless one attains the age of 18. The assertion of the prosecution that she was 13 years 8 months and 15 days of age at the time of incident is based on her school record that she was a student of 10th standard and in the school record her date of birth was entered as 08.08.1989. But looking to her health and built, her age cannot be conclusively taken less than 16 years. In the FIR her age was indicated to be 16 years, which is also the indication from her medical report and the opinion of Dr. Suniti Verma. 8. Learned counsel argued that statement of the prosecutrix that the accused had tied her mouth by Chunni, also does not find corroboration because in a case of forcible rape if Chunni is tied on the mouth with force, some marks would have to be there. Suniti Verma. 8. Learned counsel argued that statement of the prosecutrix that the accused had tied her mouth by Chunni, also does not find corroboration because in a case of forcible rape if Chunni is tied on the mouth with force, some marks would have to be there. Her statement that since it was a dark when she was taken by the accused to the place where accused committed rape upon her and that her face and hands were tied and therefore she could not cry, is also palpably false. Allegation that the accused caused rape with her at the point of knife is also totally false. She has gone to the extent of saying that when accused brought her to the school playground, there also they had pointed the knife at her and thus she could not cry also, cannot be believed. Learned counsel argued that the incident was reported to the police only because Mahaveer Prasad (PW-3), uncle of the prosecutrix, and Shishupal found the prosecutrix in the company of the accused, otherwise the matter would not have gone to the police. Mahaveer Prasad (PW-3) uncle of the prosecutrix has wrongly stated that when he along-with Shishupal was searching for the prosecutrix, they found her in a jeep with the accused and her face and hands were tide with the chunni. This witness is not a witness of truth. Shishupal, who accompanied Mahaveer Prasad in search of the prosecutrix, was not produced by the prosecution, therefore adverse inference should be drawn against the prosecution that had he been produced in the witness box, he would have deposed against the prosecution. Learned counsel for the appellants further argued that considering that the accused were all known to the prosecutrix and the prosecutrix was habitual to intercourse and that there was no mark of any injury on her body, it was a clear case of consent. According to learned counsel, it is a case of no evidence. Learned trial court has proceeded to convict the accused-appellants only on sentiments and not on law. The conviction of the accused-appellants for offence under Section 376(2)(g) cannot at all be sustained. 9. According to learned counsel, it is a case of no evidence. Learned trial court has proceeded to convict the accused-appellants only on sentiments and not on law. The conviction of the accused-appellants for offence under Section 376(2)(g) cannot at all be sustained. 9. Learned counsel for the accused-appellants, in support of their arguments, have relied on the judgments of the Supreme Court in Tejinder Singh @ Kaka vs. State of Punjab – Criminal Appeal No.1281/2008 decided on 11.04.2013, Radhu vs. State of Madhya Pradesh – 2008 (1) WLC (SC) Criminal 126, Narayan @ Naran vs. State of Rajasthan – 2007(2) WLC (SC) Criminal 298, Bibhishan vs. State of Maharashtra – IV (2007) CCR 378 (SC), Ram Kumar vs. State of Haryana - 2007 (1) RLW 417, State of Chhattisgarh vs. Lekhram – 2006(1) WLC (SC) Criminal 592, Suresh Kumar vs. State of Rajasthan – 2008 (1) RLW 350, Rajeshwar and Others vs. State of Rajasthan – 2005 (3) Crimes 444, Kalu @ Sumer and Others vs. State of Rajasthan – 2005(2) Crimes 433 , Ram Pratap @ Makiya and Another vs. State of Rajasthan – 2007 (3) RLW 2526, Mastan @ Mohan vs. State of Rajasthan – 2008 (1) RLW 476. 10. In the alternative, learned counsel for the accused-appellants argued that though in the facts of this case the conviction of the accused-appellants cannot be sustained but even if this court upholds the conviction of the accused-appellants for offence under Section 376(2)(g) of the IPC, then considering that the accused-appellants have already remained behind the bars for more than ten years three months, this court may alternatively consider reducing their sentence for offence under Section 376(2)(g) IPC to ten years, which is the minimum punishment for that offence. It is argued that there is no justification for sentencing the accused-appellants for as high punishment as life imprisonment. On 23.04.2003 when the accused-appellants are said to have committed this offence, they were all in their early twenties and that they are in jail since then. Learned counsel for the appellants argued that in the FSL report (Exhibit P-34) it is mentioned that semen was not detected from Kameej (Kurta), Shameej, Salwar, Vulvo vaginal swab and vulvo vaginal smear. Learned counsel referring to statement of Dharampal (DW-1), argued that Dharampal (DW-1) is the neighbour of the place where the rape was allegedly committed with the prosecutrix. Learned counsel for the appellants argued that in the FSL report (Exhibit P-34) it is mentioned that semen was not detected from Kameej (Kurta), Shameej, Salwar, Vulvo vaginal swab and vulvo vaginal smear. Learned counsel referring to statement of Dharampal (DW-1), argued that Dharampal (DW-1) is the neighbour of the place where the rape was allegedly committed with the prosecutrix. He has stated that he did not notice any such incident as alleged by the prosecutrix at the place of occurrence, wherefor the site-plan was prepared by the police. It is further argued that the prosecutrix has stated that even though only Guddu @ Rakesh was resident of her village but she knew the other three accused as well as they were related to their neighbours and they have been frequently visiting her village. The prosecutrix also admitted that the dispute was going on between the relatives of these three accused and her family on the way as they created a hurdle on the way and in connection therewith, a 'maar-peet' also took place between them. This clearly proves that why the accused-appellants have been falsely implicated. 11. Learned counsel for accused-appellants argued that when a doubt was raised about the age of the prosecutrix, the prosecution should have got her medically determined, which has not been done by it. Dr. Suniti Verma (PW-9) has proved that she had 28 teeth. In the FIR, her age is indicated as 16 years by the informant i.e. father of the prosecutrix. Her age has been referred as 16 in the proceedings by the police in the FIR on the very day of its registration. In such a scenario, possibility of the age of the prosecutrix exceeding 16 years cannot be ruled out. There is no contemporariness evidence produced with regard to the date of the marriage of her parents or the age of her elder or younger brother/sister. The prosecution should have therefore adduced some more evidence on this aspect of the matter. Circumstances in which the allegation of rape is made against accused-appellants, sentence of ten years imprisonment would suffice conviction for substantive offence under Section 376(2)(g) of the IPC, which is the minimum sentence for that offence. Learned counsel in support of this argument, has relied on the judgment of the Supreme Court in Bavo @ Manubhai Ambalal Thakore vs. State of Gujarat – (2012) 2 SCC 684 . 12. Learned counsel in support of this argument, has relied on the judgment of the Supreme Court in Bavo @ Manubhai Ambalal Thakore vs. State of Gujarat – (2012) 2 SCC 684 . 12. Shri Javed Choudhary, learned Public Prosecutor, opposed the appeal and submitted that only because the prosecutrix did not sustain any injury, does not lead the conclusion that she was a consenting party. Moreover, her age being only 13 years 8 months and 15 days on the date of incident i.e. 08.08.1989, her consent would be immaterial. Learned Public Prosecutor argued that immediately after their arrest all the accused were subjected to medical examination. Medical-examination-report of accused Lalaram is Exhibit P-24. Medical-examination-report of accused Dholya @ Rajendra is Exhibit P-25. Medical-examination-report of accused Rajendra is Exhibit P-26. Medical-examination-report of accused Rajendra is Exhibit P-27. They were all found to be potent capable of committing rape. The medical officer opined that nothing is suggestive that the person examined is impotent. 13. Learned Public Prosecutor argued that panty of the prosecutrix recovered vide Exhibit P-3. When sent to FSL vide Exhibit P-3, it was found containing semen stains. The accused had tied the mouth of the prosecutrix with chunni and thus it would not be possible for her to raise a voice and she could not cause any resistance because, according to her statement, her hands were also tied by the accused before committing rape upon her. Learned Public prosecutor referring to statement of Mahaveer Prasad (PW-3), uncle of the prosecutrix, argued that the prosecutrix was got freed by them from the accused. This witness also proved that mouth and hands of the prosecutrix were tied by the accused by chunni. Learned Public prosecutor therefore submitted that Jeep No.RJ-14C-6039, in which the accused raped the prosecutrix, was seized vide Exhibit P-20, which has been proved by Token Ojha (PW-5) and Ramanand (PW-6). 14. Learned Public Prosecutor, in support of prosecution case, has relied on the judgments of the Supreme Court in Vijay @ Chinee vs. State of Madhya Pradesh – (2010) 8 SCC 191 and Md. Iqbal and Another vs. State of Jharkhand in Criminal Appeal Nos.109-110 of 2011, decided on 22.07.2013. 15. We have given our anxious consideration to the rival submissions and perused the material on record. 16. Iqbal and Another vs. State of Jharkhand in Criminal Appeal Nos.109-110 of 2011, decided on 22.07.2013. 15. We have given our anxious consideration to the rival submissions and perused the material on record. 16. Unlike in an ordinary case of rape, in the present case, apart from the prosecutrix, her uncle also appeared as a witness to prove the incident of rape with the prosecutrix. Minakshi (PW-1) in her statement has stated that only Guddu was the native of her village but he knew other three accused also as their relatives were neighbours of her house. The aunt (father's sister) of the accused Dholya @ Rajendra was residing in their village, whose house was close to the house of the prosecutrix. Accused Sunil @ Sunya @ Rajendra was staying with her brother-in-law Hawa Singh(Jija) in the same village. 17. The prosecutrix has categorically stated that when she was returning her house after answering the call of nature, she was forcibly abducted by the accused in a jeep around 7.00 pm on 22.04.2003. She has also stated that accused tied her mouth with chunni and they took her near the hill in the jungle where, each one of them committed rape upon her after taking off her clothes. Then they made her to wear her clothes and brought towards senior secondary school of Shajahanpur. At that time again her hands and neck were tied with chunni. It was there that Mahaveer Prasad (PW-3) and Shishupal got her freed from the clutches of the accused around 3.00 am. Mahaveer Prasad (PW-3) has also corroborated this version of the prosecutrix and stated that when he along-with Shishupal was searching for the prosecutrix, it was around 2.30 – 3.00 am in the night. They found the prosecutrix with the accused in the jeep near the ground of the senior secondary school. The face and the hands of the prosecutrix were tied with chunni. They intercepted the jeep by putting their motorcycle in front of it. The accused then got down the jeep and ran away. It was thereafter that they brought the prosecutrix to her house. She narrated the incident of rape with her by the accused. The site plan of the place of incident has been proved by Smt. Asha Devi (PW-2) and Mahaveer Prasad (PW-3). The accused then got down the jeep and ran away. It was thereafter that they brought the prosecutrix to her house. She narrated the incident of rape with her by the accused. The site plan of the place of incident has been proved by Smt. Asha Devi (PW-2) and Mahaveer Prasad (PW-3). Investigating Officer Onkar Singh Meena (PW-10) has proved the recovery of the clothes of the prosecutrix from the place of occurrence vide Exhibit P-3. The sealed clothes were panty, sameej, salwar and Kameej (kurta). Smt. Asha Devi (PW-2) has also proved the site plan (Exhibit P-2) and the recovery memo is Exhibit P-3 as also the medical-examination-report of the prosecutrix Exhibit P-1. Karan Singh (PW-4), who was Constable deployed at the Police Station, Shahajhanpur, has proved various memos vide which semen and blood sample of the accused were taken by the police in the Hospital at Behror and delivered by him at Police Station. Tokan Ojha (PW-5) has also delivered all such packets and the arrest memo of the accused. Ramanand (PW-6), the Constable of the Police Station, Shahjhanpur, has proved the entry of the sealed articles in the 'maalkhana'. Extract copy of 'maalkhana' register (Exhibit P-22) has been proved by him. The sealed packets contained sample of the blood and semen of the accused and sample of the blood semen in the saliva of the prosecutrix. Thus total 13 packets were proved to have been deposited in the 'maalkhana'. Jagdish Prasad (PW-7), father of the prosecutrix, has proved the recovery of the clothes of the prosecutrix vide Exhibit P-3. And the fact that the prosecutrix one missing on the fateful night and that they started searching for her. Dr. Shiv Narayan (PW-8) has proved that he took the sample of blood and saliva and put them in the sealed cover and sent the same to the FSL vide Ex.P/23. 18. True it is that Dr. Suniti Verma (PW-9), the medical officer who examined the prosecutrix, has stated that the prosecutrix was habitual to intercourse for last one to two years and that she did not sustain any injury either on vagina or buttocks or at the back but by that itself does not disprove the version of rape. The FSL Report (Exhibit P-34) has been proved by Investigating Officer Onkar Singh Meena (PW-10). It has stated that human semen was detected on the panty of the prosecutrix. The FSL Report (Exhibit P-34) has been proved by Investigating Officer Onkar Singh Meena (PW-10). It has stated that human semen was detected on the panty of the prosecutrix. Considering that the prosecutrix was 13 year 8 months and 15 days of age at the time of incident and that she was alleging rape which has been corroborated by other evidence and that she was forcibly abducted and that her face and hands were tied with chunni by the accused, the allegation of rape has rightly been held proved by the trial court against accused. 19. In Vijay @ Chinee, supra, the Supreme Court held that if the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. The Supreme Court further held that under Sec. 114-A of the Indian Evidence Act, 1872, which was inserted by way of amendment in the year 1988, there is a clear and specific provision that 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. In Md. Iqbal, supra, the Supreme Court held that conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix case becomes liable to be rejected. The court must act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in the isolation. Even if the prosecutrix is of easy virtue/unchaste woman, that by itself cannot be a determinative factor and the court is required to adjudicate whether the accused committed rape on the victim. We see no good reason to disbelieve the deposition made by the prosecutrix Minakshi (PW-1). 20. Even if the prosecutrix is of easy virtue/unchaste woman, that by itself cannot be a determinative factor and the court is required to adjudicate whether the accused committed rape on the victim. We see no good reason to disbelieve the deposition made by the prosecutrix Minakshi (PW-1). 20. We do not find any infirmity in so far as the conviction of the accused-appellant for offence under Section 376(2)(g) of the IPC. 21. Let us now advert to the alternative argument of the learned counsel for the accused-appellants that even if this court holds the accused-appellants guilty for committing offence under Section 376(2)(g) of the IPC, their sentence may be reduced to the period already undergone by them. when a doubt was raised about the age of the prosecutrix, the prosecution should have got her medically determined, which has not been done by it. Dr. Suniti Verma (PW-9) has proved that she had 28 teeth. In the FIR, her age is indicated as 16 years by the informant i.e. father of the prosecutrix. Her age has been referred as 16 in the proceedings by the police in the FIR on the very day of its registration. In such a scenario, the possibility of the age of the prosecutrix exceeding 16 years cannot be ruled out. There is no contem-poraneous evidence present with the date of the marriage of her parents or the age of her elder or younger brother/sister. The prosecution should have therefore adduced the some more evidence on this aspect of the matter. 22. According to Section 376(2)(g) IPC, though the sentence awardable to accused may extend to life imprisonment but ten years has been prescribed as the minimum sentence. True it is, every accused of rape should be viewed seriously and convict should be awarded befitting sentence but the trial court in making the choice of sentence of life imprisonment in the present case has not made any discussion whatsoever why it has chosen maximum sentence. For what reason the minimum sentence of ten years would not be sufficient, has also not been indicated. For what reason the minimum sentence of ten years would not be sufficient, has also not been indicated. Before the Supreme Court in Bavo @ Manubhai Ambalal Thakore vs. State of Gujarat – (2012) 2 SCC 684 , the victim was aged 7 years on the date of incident and the accused was in the age of 18/19 years and also the fact that the incident occurred nearly 10 years ago and observed that the award of life imprisonment, which was a maximum prescribed is not warranted. That was a case in which the conviction was recorded under Section 376(2)(f). The Supreme Court held that ends of justice would be met if sentence of rigorous imprisonment of 10 years is awarded. In doing so, the Supreme Court relied on its earlier judgment in Rajendra Datta Zarekar vs. State of Goa – (2007) 14 SCC 560 , which case also relates to an offence under Section 376 where the victim was aged 6 years and the accused was aged 20 years and the Supreme Court ultimately confirmed the sentence of 10 years as awarded by the High Court. 23. In the circumstances in which the allegation of rape has made against accused-appellant, we are persuaded to hold that the sentence of the ten years would suffice conviction for substantive offence under Section 376(2)(g) of the IPC, which is the minimum sentence for that offence. According to Section 376(2)(g) of the IPC, whoever commits a 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. According to proviso thereto, 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. In the facts of this case, we find that sentence of ten years would suffice the conviction of the accused-appellants. The accused-appellants have already undergone sentence for ten years and thee months. In the facts of the case, therefore, we are rejecting the submission of learned counsel for the appellants to reduce the sentence to the period already undergone by them, however, we are persuaded to accept the alternative prayer of awarding sentence of 10 years to the accused-appellants for their conviction under Section 376(2)(g) IPC instead of life imprisonment. 24. In the facts of the case, therefore, we are rejecting the submission of learned counsel for the appellants to reduce the sentence to the period already undergone by them, however, we are persuaded to accept the alternative prayer of awarding sentence of 10 years to the accused-appellants for their conviction under Section 376(2)(g) IPC instead of life imprisonment. 24. The appeal is accordingly allowed in part. The conviction of accused-appellants for offence under Sections, 363, 366A and 376(2)(g) of the IPC is maintained. Their sentence for offence under Sections 363 and 366A is also maintained. For offence under Section 376(2)(g) IPC, however, they are sentenced to undergo ten years rigorous imprisonment. Since, the accused-appellants have already undergone more than ten years of imprisonment, they be set at liberty forthwith if not required to be detained in any other case. 25. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, accused-appellants (1) Dholya @ Rajendra, (2) Lalaram, (3) Sunil @ Sunya @ Rajendra and (4) Guddu @ Rakesh, are directed to forthwith furnish a personal bond in the sum of Rs.20,000/- each, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellants, on receipt of notice thereof, shall appear before the Supreme Court.