JUDGMENT B.V. PINTO, J.-These two appeals arise out of the same judgment and hence, both are taken up together for the purpose of disposal. 2. While Crl. A. No. 1136/2010 is filed on behalf of accused Nos. 2, 3 and 8 and Crl. A. No. 896/2011 is filed on behalf of accused No. 7 in S.C. No. 56/2008 on the file of Additional District and Sessions Judge, Fast Track Court-V, Bangalore Rural District in which by judgment dated 21.09.2010, the learned Sessions Judge was pleased to convict the appellants/accused who are eight in number for the offences punishable under Section 376(g), 395, 448, 427, 342 read with 149 IPC and sentenced each of them to undergo rigorous imprisonment for ten years and to pay fine of Rs. 10,000/- each for the offence under Section 376(g) IPC, in default of payment of fine to undergo simple imprisonment for six months each and also further sentenced to undergo rigorous imprisonment for ten years each for the offence under Section 395 IPC and they are further sentenced to undergo simple imprisonment for six months each for the offence under Section 448 IPC and they are further sentenced to undergo simple imprisonment for six months each for the offence under Section 427 IPC and they are further sentenced to undergo simple imprisonment for six months each for the offence under Section 342 IPC. 3. It is the case of the prosecution that on 16.07.2010 at about 10.00 p.m. in the house of the PW-5, complainant-Muniraju situated at Site No. 3, Survey No. 107 of the Kodegehalli village, all the 8 accused formed themselves into an unlawful assembly with a common object of committing rioting and mischief and thereafter, holding deadly weapons in the hands, they trespassed into the house of the complainant with an intention to cause mischief to the property belonging to the complainant and thereafter, they assaulted the victim Jayamma and also confined her and thereafter, they committed the dacoity by snatching the ole and leg chain and thereafter, all of them committed gang rape on the victim and thereby all the accused were charged for the offences under Sections 143, 147, 148, 427, 448, 342, 395, 376(g) read with Section 149 IPC. 4. The prosecution in order to prove the case has examined PWs.1 to 19 and got marked Exs.P1 to P31 and produced MOs.1 to 15. 4. The prosecution in order to prove the case has examined PWs.1 to 19 and got marked Exs.P1 to P31 and produced MOs.1 to 15. The defence of the accused was one of total denial. However by the impugned judgment, the learned Judge was pleased to convict all the accused for the offences mentioned above and sentenced them as aforesaid. It is this order of conviction which has been challenged by the appellants in these appeals. 5. Sri. K.P. Sathyanarayana, PW-19, Police Sub-Inspector of Tavarekere Police Station received a telephonic information from the Victoria Hospital stating that the victim has admitted in the hospital and accordingly, he went to the Victoria Hospital on 17.10.2007 at about 10.30 a.m. and reached the hospital at about 11.30 a.m. He received a written complaint from the victim. In the said complaint, it is stated by the victim that she is residing in the Kodegehalli Colony of Yeshwantpur Hobli alongwith her husband and two children since the last one year by constructing a own house. Her husband is working as a coolie and she is working in the factory. On 16.10.2007, they completed their night meals and were sleeping as usual. At about 10.00 p.m. in the night two persons, whom she has seen earlier but not knowing their names, came near her house and tapped the window door. When she opened the window and asked as to whom they want, they asked for water for drinking. She told them that since it is night time, she would not open the door whereby both of them went away. After some time again there was a knocking of the door, when she opened the window, she saw the persons who had come earlier alongwith four others holding chopper, spade and clubs in their hands. They forced them to open the door. Since the complainant and her husband did not open the door, the assailants broke the glass panes of the window and tried to open the door by means of spade brought by them. They also threatened them that they would kill them if they did not open the door. They showed the chopper. Being scared of them, complainant and her husband opened the door and at that time, all of them came inside the house. They demanded for a sum of Rs. 25,000/- and threatened them. They also threatened them that they would kill them if they did not open the door. They showed the chopper. Being scared of them, complainant and her husband opened the door and at that time, all of them came inside the house. They demanded for a sum of Rs. 25,000/- and threatened them. The complainant informed them that they are poor people and they do not have that much of amount. They asked the assailants to search the house. The assailants thereafter broke open the bureau and threw the clothes and searched for money. Since they did not get any money, they held the neck of her husband and pushed him towards the wall and assaulted him on his face by their hands. Thereafter, all the said persons pushed her husband and children inside the house and latched them inside. They dragged her outside the house and took her to a lonely place. All the persons surrounded her. One of them told her that they do not want money but they want her body. The victim requested them saying that she is like their sister and that she is married and has got husband and children so that they may not harm her. Nevertheless one of the persons embraced her body and held her tightly and attempted to commit forcible sexual intercourse with her. When she tried to extricate herself from the said assault, the accused threatened to kill her husband and children and thereafter committed forcible sexual intercourse on her one after the other. By that time, her husband and neighbours were arrived to the scene of occurrence. The accused thereafter removed the ole from her ears and also the leg chain and ran away from the scene of occurrence. All the villagers gathered and decided to catch hold of the culprits and to give a complaint to the police. On the day of giving the complaint, she showed the three persons who had committed rape on her on the previous night. Public assaulted them profusely and brought them to the police station. There is a delay in filing the complaint. Hence, she has prayed for taking suitable action against the said accused. She has stated that she knows the name of Kariya, Srinivasa and Dharma among the culprits. 6. Public assaulted them profusely and brought them to the police station. There is a delay in filing the complaint. Hence, she has prayed for taking suitable action against the said accused. She has stated that she knows the name of Kariya, Srinivasa and Dharma among the culprits. 6. PW-19 on receipt of the aforesaid complaint registered a case in Crime No. 381/2007 of Tavakere Police Station for offence under Section 427, 448, 342, 506(B), 395, 376 read with 149 IPC and transmitted the FIR to the Court as per Ex.P31. The complaint is marked as Ex.P5.On the same day at about 2.00 p.m., since PW-19 was informed that the aforesaid three persons were on the Magadi Road near Kudigehalli, he went and arrested them. Since the accused were assaulted by the public, they were admitted to Srinivasa Nursing Home for first aid, thereafter, he handed over the investigation to PW-18. 7. PW-18, the Inspector of Police, Tavarekere Police Station on taking over the investigation, went to the hospital and enquired with the victim. The victim herself voluntarily took him to the scene of occurrence and after verifying the place of occurrence, he drew panchanama as per Ex.P6. Since the victim was bleeding, he seized the blood stained saree, jacket, skirt and also the glass pieces of the window which were produced before him by the husband of the victim. The seizure of the said articles has been mentioned in Ex.P6-mahazar. Thereafter, the accused viz., accused Nos. 3, 7 and 8 were questioned by him and on the basis of the voluntary statement given by them, as per Exs.P23 to P25, he recovered the iron road produced at the instance of accused No. 3 Srinivasa as per Ex.P7-mahazar for which CWs.6 and 7 are the witnesses. Iron rod is identified as M.O. No. 5. He also seized the clothes worn by accused Nos. 3, 7 and 8 and also the personal materials of the victim as forwarded by the Medical Officer and brought to the station by Basavaraju, the Constable. After examination of these three accused and after recovery of the articles, they were produced before the Court, which remanded them to the judicial custody. Accused No. 6 Muniyappa was arrested on 19.10.2007 after his apprehension by his staff. He was also subjected to medical examination. Accused Nos. After examination of these three accused and after recovery of the articles, they were produced before the Court, which remanded them to the judicial custody. Accused No. 6 Muniyappa was arrested on 19.10.2007 after his apprehension by his staff. He was also subjected to medical examination. Accused Nos. 4 and 5 were arrested on 23.10.2007 and PW.18 recorded their voluntary statement as per Exs.P27 and P28. At the instance of accused No. 4-Venkataswamy, leg chain of the victim was seized from his house. On 08.11.2007, accused No. 1-Kuppa was arrested and on the basis of his voluntary statement as per Ex.P30, a club and one pair of ole was seized from his house in the presence of panchas and thereafter he was subjected to medical examination. PW-18 continued the investigation by sending the materials to Forensic Science Laboratory. PW-18 further secured PW-3, T.P. Arun, Engineer from PWD Department and got prepared the sketch of scene of occurrence as per Ex.P4 and on receipt of medical certificate as well as FSL report, he submitted the charge sheet against the accused for the aforesaid offences. 8. Since the offences were triable exclusively by the Court of Sessions, the jurisdictional Magistrate committed the case to the Court of Sessions. Thereafter, the Sessions Court framed charges against the accused. 9. PW.1 is Dr. B. Kamalakshi of Vani Vilas Hospital, Bangalore. She has stated that on 17.10.2007 at about 2 p.m. she has examined the victim, who has stated that she had delivered children 13 years back and that she was raped on the previous night. There were no external injuries found on her body, but bleeding was present in her vagina. She was having menstruation. There were no external injuries on her private part and she was as healthy as any other women. She has extracted vaginal swab; survical swab; vaginal smear; nail fingers and pubic hair from the person of the victim. PW.1 has opined the victim had not been subjected to sexual intercourse in the previous 2 to 3 days. Victim had informed her that on 16.10.2007 at about 10 p.m. she had been subjected to forcible sexual intercourse. She has given certificate as per Ex.P1. 10. PW.2-Dr. K.V. Satish has stated that he has examined A2 to A5 and A7 and A8 at the request of Tavarekere Police on different dates. Victim had informed her that on 16.10.2007 at about 10 p.m. she had been subjected to forcible sexual intercourse. She has given certificate as per Ex.P1. 10. PW.2-Dr. K.V. Satish has stated that he has examined A2 to A5 and A7 and A8 at the request of Tavarekere Police on different dates. He has certified that all of them were examined by him regarding their sexual potency and has certified that there is nothing to indicate that the accused were incapable of performing sexual intercourse. He has issued certificates to the said effect. PW.2 has also removed the necessary articles from the said accused for sending the same for FSL examination. He has also noted certain injuries on the person of the accused at the time of his examination. 11. PW.3-Arun is the Assistant Engineer, PWD, who has prepared the sketch of the scene of occurrence as per Ex.P4. 12. PW.4-Jayamma is the victim. She has stated that she was residing in Kodigenahalli near the Muneshwaraswamy temple in her own house alongwith her husband and two sons. On the date of incident, at about 10.00 p.m. they were sleeping in the house after taking food. Accused persons, who were working as masons came near the house and tapped the door of the window. Accused No. 1 asked for water. Hence, she questioned as to why they need water at that time and refused to give water. Accused No. 1 went back. After about 5 minutes, all the 8 accused came together and knocked the door of the window. Accused told them that they are thirsty and thereafter they broke open the glass of the window and also broke open the door and came inside the house. After coming inside questioning her husband as to why he has not opened the door, they are pushed her husband and two children inside the kitchen and dragged her outside the house. They asked for the key of the cupboard and by opening the cupboard, threw the articles inside the cupboard. Thereafter they informed that if they were given Rs. 2,000/- they would not do anything. She told that she had no money. At that time saying that they do not want money, they took her to an old abandoned house, which was one kilometer away from their own house. Thereafter they informed that if they were given Rs. 2,000/- they would not do anything. She told that she had no money. At that time saying that they do not want money, they took her to an old abandoned house, which was one kilometer away from their own house. There, they spoiled her; one person held her legs; another person held her hand and one more person held a knife on her neck. Thereafter, they committed sexual intercourse with her. First accused committed an act for 5 minutes and thereafter second accused did the same act; thereafter third accused also committed sexual intercourse with her. She also pointed her finger to A7 and A8 and stated that they also have committed sexual intercourse with her. Other accused were standing and they have not done anything, but they did not allow her to talk or to extricate herself. By that time her husband came and the accused left the place. When her husband came alongwith the villagers, accused could not be caught. At 6 a.m. in the morning accused Nos. 1 to 3 were secured. Thereafter, since she started bleeding more, she went to the Vani Vilas Hospital. Police came there and took her statement. The said statement is marked as Ex.P5. She has stated that her red saree; red blouse and black or red petticoat marked as MOs.1 to 3 were worn by her at the time of incident. She has further stated that accused have removed one pair of her ear stud and one leg chain and took away alongwith them. She remained in the Hospital for 3 days. When she came near the bus stop for going to her native place, A2 and A5 were there in the bus stop. She phoned up to the Police, they came and took them away. In the cross examination, it is elicited that her husband is working as a Poojari in a temple near their house. The devotees handover certain money to her husband for performing the pooja. There are houses at a distance of 800 feet from her house. However, she does not know their names. A glass or a lota can pass through the window without opening the front door. Since the accused were coming for their house building work, she had seen them. However she does not know their names. There are houses at a distance of 800 feet from her house. However, she does not know their names. A glass or a lota can pass through the window without opening the front door. Since the accused were coming for their house building work, she had seen them. However she does not know their names. It is further elicited that she cannot say as to who among 8 persons had broken the glasses of her window. She also is not in a position to say as to which of the accused was holding which weapon when they came to her house. She has further stated that her husband has also been assaulted but she cannot say which of the accused assaulted him. She has further stated that she cannot say specifically as to which of the accused held her hands and which of the accused has held her legs and which of the accused has held a knife near her neck. She is also not in a position to say as to who lifted her saree and who lifted her blouse. She has stated that she was made to sleep on the mud road. However, she did not sustain any injuries. The incident continued for half-an-hour. She has stated that she cannot say which of the persons out of the 8 accused committed rape on her. She also cannot say as to who were standing at the time of incident. She has stated that her husband has come half-an-hour after the incident and about 15 persons have gathered, but she cannot say their names. She has stated that there are about 6 to 7 houses in her neighbourhood. She has further stated that the accused have not ejected semen into her vagina, but they have left it out side. She has stated that she started bleeding as a result of forcible sexual intercourse by 5 persons. She has further stated that she knew all the 8 accused even prior to the incident. They were coming to dig the pit in her neighbourhood. Her husband also knows the accused. It is suggested to PW.4 that the accused were contributing to the development of the temple, but her husband had misappropriated the said amount and when they demanded for the refund of the said amount, a false case has been filed against them. However, PW.4 has denied the said suggestion. Her husband also knows the accused. It is suggested to PW.4 that the accused were contributing to the development of the temple, but her husband had misappropriated the said amount and when they demanded for the refund of the said amount, a false case has been filed against them. However, PW.4 has denied the said suggestion. She has stated that the Police Station is half-a-kilometer away from her house, which can be covered within 10 minutes. She has also stated that the Hospital is also at a distance of 10 minutes travel in a vehicle from her house. She has stated that when she was standing in the bus stand on 22.10.2008, she saw the accused and thereafter she phoned up to the Police. However, she does not know the telephone number of the Police to whom she has phoned up regarding the presence of the accused. 13. PW.5-Muniraju is the husband of PW.4. He has stated regarding the arrival of the accused in the night of the incident and thereafter the act of rape committed by the accused on his wife in the night of the incident. He has stated that after his wife was taken away by the accused, he himself and his son went and told the neighbours and thereafter they went to the place where the victim was raped. He has stated that before the incident, all the accused were working as coolies and that they have seen them. It is suggested to him that the accused were contributing to the development of the temple, but he has misappropriated the same and when the accused asked for return of the said money, he had filed the false complaint making use of his wife. The said suggestion has been denied by PW.5. He has admitted that if they were to talk from their house, the neighbours would hear the same. The dilapidated house, where the incident took place is about 150 feet away from their house. 14. PW.6-Jagadish is the son of PWs.4 and 5. He has stated that the accused had broken the door of their house on the date of incident. In the cross examination he has stated that 3 out of the 8 persons, who came in the night were caught in the morning and thereafter his mother went to the Hospital. 14. PW.6-Jagadish is the son of PWs.4 and 5. He has stated that the accused had broken the door of their house on the date of incident. In the cross examination he has stated that 3 out of the 8 persons, who came in the night were caught in the morning and thereafter his mother went to the Hospital. In the cross examination he has also stated that he cannot say as to who broke the window. He also states that the dilapidated house is about 20 feet away from their house and inside the said house his mother has been raped. He has also stated that there were no impediment for going to the Police Station in the night itself. He is not aware of the colour of the saree; blouse and petticoat of his mother. He has also stated that no blood had fallen on the clothes of her mother. 15. PW.7-Jayarama is a signatory to Ex.P6-spot panchanama. However, he has turned hostile to the case of the prosecution regarding the recovery of a rod at the instance of A3-Srinivasa @ Bappi. 16. PW.8-Shivalingaiah; PW.9-Vasanth Kumar and PW.10-Saleem Pasha are the neighbours and attestors to the seizure Mahazar. All of them have turned hostile to the case of the prosecution. 17. PW.11-Narasimhaiah is the signatory to Ex.P6. PW.12-Muniraju is also another signatory to Ex.P12-Panchanama. PW.13-Ananda is yet another signatory to Ex.P12-Seizure Mahazar. All of them have turned hostile to the case of the prosecution. 18. PW.14-Thammanna is the Secretary of the Village Panchayath, who has produced Ex.P3-Demand Register Extract in respect of site No. 3 belonging to PW.5. 19. PW.15-Krishnamurthy is the Police Constable, who has apprehended A1 on 7.11.2007. 20. PW.16-Krishnaraju is the Assistant Director of Forensic Science Laboratory, Bangalore. He has stated that the articles sent in this case for chemical examination have been subjected to test by him and has issued a Certificate as per Ex.P.21. He has stated that none of the articles sent by the Investigating Officer in this case were found to be stained with any seminal stains nor any spermatozoa was detected in item No. 12, i.e., Vaginal Swab and one glass slide sent by the investigating officer. 21. PW.17-Dr.S.Venkataraghava, has stated that he has examined accused No. 6-Muniyappa on 19.10.2007 and has certified that there is nothing to show that accused No. 6 is unable to perform sexual intercourse. 22. 21. PW.17-Dr.S.Venkataraghava, has stated that he has examined accused No. 6-Muniyappa on 19.10.2007 and has certified that there is nothing to show that accused No. 6 is unable to perform sexual intercourse. 22. PW.18-Ravishankar is the Investigating Officer, whose evidence has been discussed in the earlier part of this Judgment. 23. PW.19-Sathyanarayana is the Sub-Inspector of Police of Tavarekere Police Station, who has registered the case. He has stated that on the date of registration of FIR, he had arrested the 3 accused namely Kariya, Srinivasa and Dharma at about 2 p.m. on Kudigerehalli, Magadiroad. The said persons were assaulted by the public and therefore he had admitted them in the Srinivasa Nursing Home for first-aid. He has identified the said 3 persons as accused Nos. 7, 3 and 8 respectively. 24. It is from the above evidence of the prosecution witnesses that the learned Sessions Judge has found the accused guilty and has convicted them as aforesaid. 25. Heard Sri Iqbal Ahmed Khan, learned Counsel for the appellants in Crl. A. No. 1136/2010; Heard Sri Srinivasa, learned Counsel for the appellant in Crl. A. No. 896/2011; and Sri G.M. Srinivasa Reddy, learned HCGP for the Respondent/State in both the appeals. 26. It is submitted by the learned Counsel for the appellants that it is a totally false case booked against the appellants by the victim and her husband. It is stated by the Counsels that at the first instance, the complainant-PW.4 states that she does not know the names of the persons, who came to the house on the night of the incident. Whereas at the end, she gives the name of A3, A7 & A8 as the persons, who were caught by the public. It is mentioned in the complaint that the said three persons were brought to the Police Station and when the complaint was given, they were also present in the Police Station. Whereas in the evidence, she stated that on the next day when she was standing in the bus-stand, she found these three persons and thereafter she telephoned to the police and police thereafter caught them and brought them to the Police Station. Evidence of PW.19-K.P.Sathyanarayana, PSI, also supports the case of the Complainant that they were caught on the next day. Hence, the learned Counsel submits that there is a material contradiction in the evidence of witnesses regarding the apprehension of the accused. Evidence of PW.19-K.P.Sathyanarayana, PSI, also supports the case of the Complainant that they were caught on the next day. Hence, the learned Counsel submits that there is a material contradiction in the evidence of witnesses regarding the apprehension of the accused. He further submits that the evidence of PW.1-Dr. Kamalakshi, clearly indicates that on her examination, the victim was found to be not having any external injuries on her person. Whereas it is the case of the victim that she was dragged from her house to the scene of occurrence, which is about500 feet away from the house. According to her, it is 1 km away from the house. According to her husband-PW.5, it is 500 feet and according to PW.6-their son, it is about 20 feet away from their house. There is a glaring discrepancy in the evidence of these three witnesses insofar as the location where the incident is alleged to have happened. It is also submitted by him that the sketch drawn by PW.3-T.P.Arun, indicates that the place where the alleged rape happened is an open land between two sheds. Under the circumstances, regarding the scene of occurrence, there is glaring discrepancy. The Spot Mahazar drawn by the police as per Ex.P6 does not indicate the place, where the incident is alleged to have happened. Nevertheless, it is seen that the place where the incident has alleged to have happened and the house of the accused is covered with thorny bushes and PW.4 states that she was dragged by 8 persons in bear foot. Under the circumstances, there ought to have been some scratch marks on the body of PW.4-the victim, but the evidence of PW.1-Dr.Kamalakshi is that there were absolutely no scratch marks on the body of the victim. Learned Counsel further submits that even though 5 persons have committed forcible sexual intercourse on the victim and according to PWs.2 and 17, all the accused were capable of performing sexual intercourse and all of them were youngsters, however, no seminal stains and spermatozoa were found in the private part of the victim. PW.1 has also stated that there is no evidence of sexual intercourse in the victim-PW.4. for the past 2 to 3 days, which indicates that there was no sexual intercourse at all on the victim on the previous day, i.e., the date of the alleged incident. PW.1 has also stated that there is no evidence of sexual intercourse in the victim-PW.4. for the past 2 to 3 days, which indicates that there was no sexual intercourse at all on the victim on the previous day, i.e., the date of the alleged incident. Further, it is also stated by PW.4 that the accused have though not ejected the semen into her private parts had left it outside. If that is the case, the clothes worn by the victim ought to have contained the evidence of semen of the accused, but the FSL Certificate is in the negative, indicating that no such act as alleged by the victim had happened on the date of incident and that the accused have been falsely implicated in the case. It is also submitted that though the incident happened before 11.00 p.m. on 16.10.2007, the victim and her husband did not go to the police station or the hospital and hence there is an in-ordinate delay in lodging the complaint. Hence, it is submitted that the accused may be acquitted by giving benefit of doubt. 27. Sri G.M. Srinivasa Reddy, learned HCGP for the Respondent, on the other hand, submits that PW.4 is a married woman and her last delivery was about 12 years prior to the date of incident. PW.4 was living a married life with her husband-PW.5 and she was aged about 35 years as on the date of the incident. Hence, there cannot be any internal or external injury sustained by PW.4 at the time of sexual intercourse, more particularly, because the victim has stated that one of the accused has held her hands and one of the accused has held her legs and a third accused had held a knife on her neck and thereafter the other accused have committed sexual intercourse. In that background, it was impossible for the victim to even move about and that is the reason why there is absence of any scratch marks on the victim. He further submits that the defence has not brought out any cogent or convincing reasons why all PWs.4, 5 and 6 should have deposed falsely against the accused and that they should have intended to send the accused to the jail unless the incident has really happened. He further submits that the defence has not brought out any cogent or convincing reasons why all PWs.4, 5 and 6 should have deposed falsely against the accused and that they should have intended to send the accused to the jail unless the incident has really happened. The evidence of glass pieces seized by the police, the blood stained clothes seized by the police and also the spot mahazar clearly indicates that the incident of this nature narrated by PW.4 has in fact happened and therefore he submits that the Judgment of conviction passed by the learned Sessions Judge is supported by the cogent and clear evidence on record. There is no reason why the victim should be dis-believed. Hence, he submits that the appeal may be dismissed. 28. I have gone through the entire evidence on record. In the first place, the complainant has stated in her complaint itself that the public had caught hold of three persons, who have been brought to the Police Station and she had come alongwith the said three persons, their name has been mentioned as accused Nos. 3, 7 and 8 in the complaint itself. She has stated that in all six persons had come to the house. Whereas the police have filed a charge sheet against 8 persons. Therefore, necessarily out of the 8 persons, two of them are not involved in the incident at all, whose involvement has been added subsequently. 29. So far as the arrest of the three accused persons is concerned, though the complainant says that they were brought to the Police Station, PW.19 states that he had arrested them on the next day at 2 p.m. The evidence of PW.2-Dr. K.V. Sathish indicates that all the four accused were injured when he examined them and therefore at the time when they were brought to the Police Station, even before the complaint was filed, the accused were assaulted and thereafter they were sent for private Nursing Home for treatment. Both PWs.4 and 19 are deposing falsely before the Court, so far as their arrest on the next day at 2 p.m. is concerned, whereas they were already present in the Police Station and they were getting treatment in the Private Nursing Home, which has been spoken to by PW.19. 30. Both PWs.4 and 19 are deposing falsely before the Court, so far as their arrest on the next day at 2 p.m. is concerned, whereas they were already present in the Police Station and they were getting treatment in the Private Nursing Home, which has been spoken to by PW.19. 30. So far as the probability of the occurrence is concerned, apart from the fact that PW.1-Dr.Kamalakshi states that PW.4 has not been subjected to any sexual intercourse since 2 to 3 days prior to the date of her examination, the evidence of PW.16 is also to the effect that there is absolutely no evidence of presence of any seminal stains on the clothes of the victim. The victim has stated that 5 persons have committed rape on her and at that time she has stated that accused have lifted her petticoat, but they have not completely removed her dress. It is stated by her that none of the accused have ejaculated inside her vagina, but has further stated that they have left the semen outside. It is therefore clear that the saree and petticoat worn by the victim ought to have stained with seminal stains since the clothes were seized immediately after the incident and sent for chemical examination by the FSL. Absence of the seminal stains and spermatozoa in the clothes worn by the victim is a clear indication that the incident has not happened as stated by PW.4. 31. So far as the probability of the incident happening is concerned, though according to PW.4, the distance between her house and the place where she was forcibly raped is about 1 km. The evidence of PWs.5 and 6 is otherwise. According to PW.6, the place, where his mother is raped is only 20 to 30 feet away from their house. It is in the evidence of PW.6 that there are houses nearby and that when PWs.5 and 6 went near the place, where the accused had committed the offence, several neighbours have accompanied them, which indicates that at the call of PWs.5 and 6, neighbours have actually come near the scene of occurrence. Under the circumstances, the story of PW.4 that she was dragged for 1 km by 8 persons and was taken into an abandoned house and thereafter she was raped is not corroborated by the other evidence on record. 32. Under the circumstances, the story of PW.4 that she was dragged for 1 km by 8 persons and was taken into an abandoned house and thereafter she was raped is not corroborated by the other evidence on record. 32. So far as the delay in lodging the complaint is concerned, though the incident has happened by about 11.00 p.m. on 16.10.2007, the complaint is recorded at 11.30 a.m. on 17.10.2007 and the same is registered byPW.19 at 1.00 p.m. If at all such ghastly incident had occurred as stated by PW.4 and the villagers had also gathered in the night itself, nothing prevented PWs.4, 5 and 6 to approach the Police in the night itself. It is seen that the FIR has reached at 4.15 p.m. to the Magistrate on 17.10.2007. This inordinate delay has not at all been explained by the prosecution. It is stated by PWs.4 and 5 that the Police Station is at a distance of 15 minutes drive from the scene of occurrence. Therefore, the inordinate delay in lodging the complaint is fatal to the case of the prosecution. 33. On a careful consideration of the totality of circumstances, the evidence of PW.4 does not inspire the confidence in the mind of the Court to hold that the incident has happened as alleged by her. There is absolutely no evidence to show that she has been subjected to sexual intercourse on the night of the incident. There is even no evidence to show that there was at least an attempt to commit rape on her in view of the evidence of the Doctor and the scientific evidence.34. In that view of the matter, I am of the considered opinion that the prosecution has failed to bring home the guilt of the accused beyond all reasonable doubt. I have gone through the Judgment of the trial Court and the reasoning given by the learned Sessions Judge in convicting the accused. The said reasonings are not based on the evidence on record and are not in accordance with the settled principles of law. The said Judgment is erroneous and the same is liable to be set aside. Accordingly, the following order is made:- ORDER This appeal is allowed. The order of conviction and sentence passed against the appellants is hereby set aside. The appellants are acquitted of the offences leveled against them. The said Judgment is erroneous and the same is liable to be set aside. Accordingly, the following order is made:- ORDER This appeal is allowed. The order of conviction and sentence passed against the appellants is hereby set aside. The appellants are acquitted of the offences leveled against them. The appellants are in custody and they shall be set at liberty forthwith, if not required in any other case.