Judgment V.K. Bist, J. This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 29.05.2004 passed by 1st F.T.C./Addl. Sessions Judge, Roorkee, District Haridwar in Sessions Trial No. 332 of 2002 ‘State vs. Gautam and others’, whereby accused/appellant Gautam has been convicted under Sections 363, 366 and 376 of the Indian Penal Code, 1860 (for short I.P.C.) and has been sentenced to undergo rigorous imprisonment for four years with fine of Rs. 500/- under Section 363 I.P.C., and in default of payment of fine simple imprisonment for six months, rigorous imprisonment for five years with fine of Rs. 500/- under Section 366 I.P.C. and in default of payment of fine simple imprisonment for one year, rigorous imprisonment for seven years with fine of Rs. 500/- under Section 376 I.P.C. and in default of payment of fine further imprisonment for one year. The appellant Smt. Mithlesh has been convicted under Sections 363 and 366 I.P.C. and has been sentenced to undergo rigorous imprisonment for two years with fine of Rs. 500/- under Section 363 I.P.C., and in default of payment of fine simple imprisonment for three months, rigorous imprisonment for three years with fine of Rs. 500/- under Section 366 I.P.C. and in default of payment of fine simple imprisonment for six months. 2. Heard learned counsel for the parties and perused the Lower Court’s Record. 3. The facts, leading to the appeal, are that on 13.05.2002, Palla-complainant (father of Km. Hema-the victim) submitted a typed written application before Circle Officer, Police Manglaur, Roorkee, District Haridwar with the assertion that on 5th May, 2002 at around 11:00 a.m. he had gone to jungle. At that time, appellant no. 2 Smt. Mithlesh called Km. Hema, who was alone at her home, and forcefully sent her with the accused/appellant no.1, namely, Gautam (brother-in-law ‘DEWAR’ of appellant no.2). The accused Gautam, first of all, took Km. Hema to Jhabreda, (in the room of one Shibbu) where Km. Hema was kept under detention and the accused Gautam with his associates, namely, Shravan, Sandeep, Manga and Shibbu committed gang rape upon her throughout the night. The accused Gautam, first of all, took Km. Hema to Jhabreda, (in the room of one Shibbu) where Km. Hema was kept under detention and the accused Gautam with his associates, namely, Shravan, Sandeep, Manga and Shibbu committed gang rape upon her throughout the night. Then the accused took his daughter to Jwalapur, at the house of one Pramod, where for two successive days his daughter was gang raped and when her daughter resisted, the accused persons wounded her with a knife and threatened her. Through her own attempts, when his daughter got rid from the clutches of the accused persons and came to her home, she disclosed the whole episode to her father. The complainant tried to lodge report at Police Station Manglaur, but they refused. It was reported that the accused are threatening the complainant and his daughter that in case they lodge any report, they will be killed. It was reported that normal condition of the victim is critical. The complainant, in the complaint, sought direction to the concerned police to lodge report and prayed for treatment of his daughter. On this, the C.O., Circle endorsed the complaint to the Police Station Manglaur and under the directions of the C.O. Circle, an F.I.R. was lodged on 13.05.2002 and entry was made in the General Diary. Investigation of the case was entrusted to PW-4 Sub Inspector Awadesh Kumar Pandey, who during investigation, recorded statements of the witnesses, after making spot inspection prepared site plans and then apprehended the accused persons. On 13.05.2002 at 5:15 p.m., medical examination of Km. Hema was conducted by PW2 Dr. Urmila Bohra at Civil Hospital, Roorkee. The doctor, in her report, has mentioned that there was a mark of injury over forehead-left side, however no mark of injury was seen anywhere on the body. Doctor found that breasts were well developed, auxiliary and pubic hairs were present, height 4’11”, weight 45 Kg., teeth 7+7/7+7, vagina admitted two fingers easily, uterus normal size, hymen absent and vaginal smear was taken for pathological examination. For determining age of the victim, the victim was advised X-ray of right knee, elbow and wrist joint. PW-5 Dr. Yogesh Kumar, Radiologist conducted radiological examination on the person of the victim. In supplementary medical report, the doctor PW-2 has recorded that no definite opinion about rape could be given. For determining age of the victim, the victim was advised X-ray of right knee, elbow and wrist joint. PW-5 Dr. Yogesh Kumar, Radiologist conducted radiological examination on the person of the victim. In supplementary medical report, the doctor PW-2 has recorded that no definite opinion about rape could be given. After having examined the X-ray report, age of the victim was found between 16-17 years. 4. The prosecution, in order to prove its case, got examined PW-1 Km. Hema-the victim, PW-2 Dr. Urmila Bohra-Medical Officer, PW-3 Smt. Kusum- mother of the victim, PW-4 Sub Inspector Awadesh Kumar Pandey-Investigating Officer, PW-5 Dr. Yogesh Kumar-Radiologist and PW-6 Constable Ramdhan, who prepared the Chik Information Report and made entry in the G.D. 5. Learned 1st F.T.C./Addl. Sessions Judge, Roorkee, after considering the statement of the prosecution witnesses, the statements of the accused/appellants under Section 313 Cr.P.C., the medical report of the victim as well as the statement of the doctor, convicted the accused/appellants and awarded punishment as mentioned above. 6. PW-1 Km. Hema-the victim, in her statement has stated that on the date of incident, which happened around one year and three months back, she was at her home alongwith her younger siblings. Her parents had gone to the jungle. One lady, namely, Mithlesh came and asked her to accompany her to her house, but she (Hema) refused. However, Mithlesh took her forcefully to her home, where the accused Gautam and his parents were present. The accused Mithlesh is sister-in-law (BHABHI) of accused Gautam. All of them advised her to accompany Gautam, but she again refused to accompany him. On this, they threatened her that in case she did not accompany, they will kill all her family members. Threatening her, she was forcefully sent with the accused Gautam. Gautam took her to the station of the village, where Manga, Shrawan and Sandeep met them and all of them took her to the house of Shibbu, situated at Jhabreda. She was kept there in the night. She stated that Gautam and Shibbu forcefully committed rape on her. They had a knife in their possession with which they inflicted injuries on her forehead and on her hand. She further stated that on the next morning Gautam, Manga, Shrawan and Sibbu took her at the house of Pramod (brother of accused Gautam) at Jwalapur. At Jwalapur, Dinesh, Omveer and accused Mithlesh met them. They had a knife in their possession with which they inflicted injuries on her forehead and on her hand. She further stated that on the next morning Gautam, Manga, Shrawan and Sibbu took her at the house of Pramod (brother of accused Gautam) at Jwalapur. At Jwalapur, Dinesh, Omveer and accused Mithlesh met them. All of them intended to marry her forcefully with the accused Gautam. Accused Mithlesh had forcefully filled Hema with vermilion. In the night, she was kept at Jwalapur. On that night, Gautam, Shibbu, Shrawan, Manga, Sandeep, Dinesh, Pramod and Omveer gang raped her against her wish. Next day, they went somewhere and in that state of affair, she fled away and reached her home at Libarhedi. On reaching home, she disclosed the whole incident to her parents. Thereafter, her father went to the Police Station in order to lodge F.I.R., but the police officials refused to lodge the same. Due to threats given by accused Gautam, the F.I.R. could not be lodged within time and was lodged after 8-9 days that too, after submitting application by her father. She stated that she was medically examined at the Govt. Hospital. She also stated that her father had lodged the F.I.R. but now he is now no more. She stated that still the accused threats her that in case she gives evidence, she will be killed. 7. PW-3 Smt. Kusum is the mother of the victim, who has given evidence as described by her daughter. This witness has stated that the incident is of one year four months back. She and her husband had gone to jungle for labour work. In the house, her daughter-Hema was alone. At that time her age was around 15 years. On that day, sister-in-law (BHABHI) of accused Gautam, namely, Mithlesh went to their house at 10:00-11:00 a.m. She brought Km. Hema to her home, where the accused Gautam and his parents were present. Parents of accused Gautam instructed him to take away Hema hurriedly, before prosecutrix’s parent returns. Thereafter, bringing Hema, accused Gautam proceeded to Shibbu’s home at Jhabreda. Manga, Shravan, Sandeep were with the accused Gautam. That night they kept Hema in the house of Shibbu and in the night, Shibbu and accused Gautam committed rape on Hema. Next day, Manga, Sandeep, Shravan and Dinesh took her to Jwalapur where the victim was detained in the house of Pramod. Manga, Shravan, Sandeep were with the accused Gautam. That night they kept Hema in the house of Shibbu and in the night, Shibbu and accused Gautam committed rape on Hema. Next day, Manga, Sandeep, Shravan and Dinesh took her to Jwalapur where the victim was detained in the house of Pramod. She stated that in the house of Pramod, Hema was raped again by Pramod, Sandeep, Manga, Shravan and Omveer. In the evening on third day, Hema herself returned to home, and she disclosed the whole incident to this witness. Thereafter, her husband Palla went to Manglaur Police Station for lodging the F.I.R. but the Police did not lodge the same for about 8-9 days. Thereafter, typed written report was handed over to the senior officer of the police. 8. Mrs. Neetu Singh, learned counsel for the accused/appellant argued that as per the evidence discussed above, the guilt of the accused is not proved and the trial Court has wrongly convicted the accused/appellants. Submission of the learned counsel for the appellants is that the prosecution has failed to prove its case beyond reasonable doubt against the accused. Learned counsel for the accused/appellants submitted that the F.I.R. is nothing but a concocted story and has been lodged after thought. She submitted that there is inordinate delay in lodging the F.I.R., as the alleged incident is said to have taken place on 05.05.2002 and according to the F.I.R. the victim herself escaped from the clutches of the accused on third day, however the complaint was made on 13.05.2003. It is contended that in order to prove the guilt of the accused, evidence of Medical Officer is vital. She submitted that PW-2 Dr. Urmila Bohra, while examining the victim, reported that no opinion could be given about commission of rape; the supplementary medical report suggests that the doctor did not find any spermatozoa dead or alive in the pathological test and no internal or external injury was found on the person of the victim. She submitted that as per radiological examination the age of the girl is found to be between 16-17 years, which may be plus (+2) on the upper side, thus at the time of alleged incident, the victim was not minor. She submitted that as per radiological examination the age of the girl is found to be between 16-17 years, which may be plus (+2) on the upper side, thus at the time of alleged incident, the victim was not minor. She submits that as per the expert opinion, epiphysis fusion of bone joints (knee and elbow) were present, suggesting that the age of the victim was above 18 years which is at par with the medico legal theory described in Modi’s Text Book of Medical Jurisprudence. She further submitted that according to Modi’s jurisprudence, the essential ingredients for commission of the crime of rape are not fulfilled, because in the medical examination, no injury was found on the private parts of the victim, inasmuch as, no sign of forceful intercourse was found, therefore, commission of crime of rape is not at all proved. She relied upon the judgment given by this Court in Criminal Appeal no.1188 of 2001, reported in [2010] 2 NCC 159, in which this Court has held that it is settled law that two years margin either on the upper side or lower side can be given. Learned counsel for the accused submitted that in the facts and circumstances of the case, the age of the victim should be treated more than 18 years. Learned counsel for the appellants contended that the victim was the consenting party and she went with the accused by her own wish, therefore, offence under Section 363, 366 and 376 I.P.C. against the accused Gautam and offence under Section 363, 366 I.P.C. against accused Mithlesh is not made out. 9. Learned counsel for the accused/appellant then contended that the allegations of kidnapping are baseless and not creditable, as according to the prosecution story, the victim was taken from one place to other i.e. Jhabreda and then Jwalapur, that too in broad day-light between 12:00 to 1:00 p.m. by the accused persons, and she passed through crowded markets, but it is not believable that the victim did not resist or did not seek any help from passersby, hence the prosecution story utterly fails. 10. Learned counsel for the accused/appellants contended that the Apex Court in a catena of judgments has observed that two opinions cannot be formed from one set of evidence i.e. one that resulted into acquittal of accused and other that resulted into conviction of co-accused for the same offence. 10. Learned counsel for the accused/appellants contended that the Apex Court in a catena of judgments has observed that two opinions cannot be formed from one set of evidence i.e. one that resulted into acquittal of accused and other that resulted into conviction of co-accused for the same offence. She submitted that six accused, who had been implicated for the same offence of rape by the prosecution, had been acquitted by the trial Court by giving them benefit of doubt, and therefore, on the same set of evidence, the accused/appellants cannot be convicted and they are also entitled for the same relief. Lastly, it is submitted that there is allegation of gang rape altogether by four real brothers, Promod, Gautam, Dinesh and Omveer on two consecutive nights upon the victim, however in a country like India, it is not possible due to cultural heritage, that a younger brother shall commit rape in front of elder brother and vice-versa. Relying upon the judgment of Hon’ble the Supreme Court in Krishan Kumar Mallick vs. State of Haryana, reported in (2011) 7 SCC 138, learned counsel for the accused/appellants submitted that contradictions in prosecution evidence, embellishments, inconsistencies, exaggerations or several lacuna in evidence of the prosecutix, which are not supported by corroboration of any other evidence, makes the accused liable to be acquitted. 11. Learned Addl. Govt. Advocate, on the other hand, contended that in an incident like rape, the medical report is merely supplementary evidence and it cannot gloss over the testimony of the victim. She submitted that in the case of rape, the solitary and unshaken evidence of victim is sufficient to prove the guilt beyond reasonable doubt. She contended that in absence of definite opinion about the rape, the oral testimony of the victim couldn’t be disbelieved. According to learned A.G.A., the statement of the victim is sufficient for conviction. She contended that at the time of said incident, the victim was less than 16 years and consent of the victim is not vitally important. She submitted that the delay in lodging the F.I.R. has been explained. 12. I have gone through the statement of the victim, have also perused the medical examination report and the law cited by learned counsel for the accused/appellants. She submitted that the delay in lodging the F.I.R. has been explained. 12. I have gone through the statement of the victim, have also perused the medical examination report and the law cited by learned counsel for the accused/appellants. So far as the question of kidnapping of a minor girl from her legal guardianship is concerned, according to the prosecutix, she was taken by the accused, first of all, to Jhabreda and then Jwalapur. Neither did the prosecutrix made protest against the kidnappers, nor did she screamed or resisted in order to get rid of the clutches of the accused. The said places cannot be said to be the deserted, rather these places are densely populated, but Km. Hema missed every opportunity. Suffice it to say that the prosecutrix was a consenting party, otherwise she would have protested. Considering all the facets of the case, it is found that victim was quite mature and accompanied with the accused by her own sweet will. As per the medical report, the age of the victim at the time of alleged offence was between 16-17 years and as per the Modi’s jurisprudence, there would be variation of two years on either side. It is settled law that two years margin either on the upper side or lower side can be given, moreover, where two views are possible, the one beneficial to the accused would be taken into account. Therefore, considering the testimony of doctor and facts and circumstances of the case, the age of the victim should be treated more than 18 years. Medical evidence further discloses that no definite opinion about rape could be given. The doctor did not find any sign of injury on any part on the body of the victim, which is impossible in the case of forceful commission of repeated gang rape. Thus, suffices it to say that the prosecutrix was a consenting party and it cannot be said that she was kidnapped from her legal guardianship by the accused/appellants and rape was committed upon her against her wish. The prosecution also failed to prove that appellant no.2, who is sister-in-law of appellant no.1, was involved in abduction of the victim. As already held that victim accompanied appellant no.1 by her own wish, charge against appellant no.2 is also not proved. The prosecution also failed to prove that appellant no.2, who is sister-in-law of appellant no.1, was involved in abduction of the victim. As already held that victim accompanied appellant no.1 by her own wish, charge against appellant no.2 is also not proved. Infact, almost all family members, namely, Gautam, Pramod, Dinesh, Omveer (all brothers) and Smt. Mithilesh (sister-in-law) were implicated. Involvement of four real brothers and on sister-in-law (Bhabhi) in a case of rape in the circumstances, as narrated by the defence, is not believable. Thus, accused are entitled for the benefit of the judgment cited by the learned counsel for the appellants. 13. For the reasons as discussed above, I am of the view that it cannot be said that charge of offences punishable under Sections 363, 366 and 376 I.P.C. against the accused/appellant Gautam and charge of offences punishable under Sections 363 and 366 I.P.C. against the accused/appellant Smt. Mithlesh is proved beyond reasonable doubt. In my opinion they are entitled to the benefit of reasonable doubt. Therefore, this appeal deserves to be allowed. 14. Accordingly, the appeal is allowed. Impugned judgment and order dated 29.05.2004 passed by 1st F.T.C./Addl. Sessions Judge, Roorkee, District Haridwar in Sessions Trial No. 332 of 2002 ‘State vs. Gautam and others’, so far as it relates to the conviction and sentence awarded against the accused/appellants Gautam and Smt. Mithlesh, is hereby set-aside. The accused are on bail. They need not to surrender. Their sureties are discharged. Let the Lower Court’s Record be sent back.