Judgment Heard learned counsel for the appellants and learned Additional Public Prosecutor for the State. 2. Both the appellants have preferred this appeal against their conviction for the offences under sections 346, 366 and 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 10 years and fine of Rs.2000/- under section 376 of the Indian Penal Code and in default to further undergo three months simple imprisonment and for section 366 of the Indian Penal Code further to undergo rigorous imprisonment for five years and fine of Rs.1000/- in default simple imprisonment for one month, both the sentences shall run concurrently as awarded by Sri Rajeshwar Tiwari, Additional Sessions Judge, F.T.C. – IV, West Champaran, Bettiah, in Sessions Trial No. 94 of 2008 (arising out of Sathi P.S. Case No. 12/06, G.R. No. 320/06) However, no separate sentence was awarded for the offences under section 376 of the Indian Penal Code. 3. The prosecution case as it reveal from a petition forming part of F.I.R. dated 1st February 2006 addressed to Officer Incharge, Sathi Police Station, West Champarant, Bettiah, by Munni Khatoon (P.W.3) is that on 30th January 2006 at about 9.00 p.m. both the appellants called her out from her house and when she came out appellant Qaishar Ali caught her and appellant Sheikh Neyaz puts some cloths in her mouth and tied and dragged her to the field of Bamboo clump near house of one Bhikhar, where both committed rape upon her one by one, thereafter she was brought to the house of Bhikhar Paswan where co-named accused (non appellant since acquitted). Meena Devi opened the door and she was pushed therein provided with a glass of water by lady co-accused and thereafter she was locked and confined therein and when on following night anyhow her family members could learned about her confinement, they arrived at took her out. Police after institution of the case and conclusion of investigation submitted charge-sheet against all the three accused persons who further faced the trial for the offences under sections 376/34, 366/34 and 364/34 of the Indian Penal Code. 4. To substantiate the charges altogether nine witnesses were examined by the prosecution besides following three documents as exhibited: Exhibit – 1 – Injury report Exhibit – 2 – Formal F.I.R. Exhibit – 3 – Written application 5. 4. To substantiate the charges altogether nine witnesses were examined by the prosecution besides following three documents as exhibited: Exhibit – 1 – Injury report Exhibit – 2 – Formal F.I.R. Exhibit – 3 – Written application 5. In defence, there was no ocular evidence but two documents were produced and exhibited as follows: Exhibit – A – Statement of informant u/s 164 Cr. P.C. Exhibit – B – C.C. of police report of case no. 115M/06 6. On consideration of the materials aforesaid trial court acquitted lady accused but convicted and sentenced the two appellants for the remaining aforestated. 7. During the course of argument, it is contended on behalf of the appellants that out of nine prosecution witnesses, five witnesses i.e. P.Ws. 2, 4 to 6 and 9 have been declared hostile since none of them including father of the victim even a lis supported the prosecution case and remaining four witnesses i.e. victim, her mother, doctor and Investigation Officer could not be able to substantiate the prosecution version and the appellants have falsely been implicated only because of refusal of father of appellant no. 1 to get the victim married with his son. The entire prosecution story appears concocted and improbable. As submitted, after much delay the case has been instituted. 8. Contra, learned Additional Public Prosecutor while supporting the findings further submitted that statement of the victim who was below 18 years of age has also corroborated by statement of P.W.7 the Doctor who examined her is sufficient to hold the appellant guilty and punish. It is a case of gang rape and technical error in framing of charge and conviction under section 376/34 of the Indian Penal Code does not come into way in this case which is in fact for the offence under section 376(2)(g) of the Indian Penal Code. 9. Undisputedly, out of nine prosecution witnesses P.Ws. 2, 4, 5, 6 and 9 namely, Sk. Ziyaul Haque alias Sk. Zabullah, Sk. Algu, Sk. Kamil Hussain, Sk. Reyaz alias Sk. Neyaz and Sk. Hasmullah, have been declared hostile and there is absolutely nothing in their cross examination also for consideration and discussion. 10. P.W.1 namely, Shaimul Nesha, mother of the victim girl has come to say that at the relevant time her daughter, the victim, was in the old house and she was in another house which was situated behind the old one. Hasmullah, have been declared hostile and there is absolutely nothing in their cross examination also for consideration and discussion. 10. P.W.1 namely, Shaimul Nesha, mother of the victim girl has come to say that at the relevant time her daughter, the victim, was in the old house and she was in another house which was situated behind the old one. When she came there she could not found the victim rather during search in the next night at about 11.00 p.m. she could be recovered from the house of co-accused (none appellant Meena Devi) and narrated the miseries faced by her at the instance of the appellants. She was cross examined at length at different phases but from her cross examination nothing substantive could be taken except in para 33 & 34 of the cross examination story of panchayat after recovery of the victim was also introduced. 11. P.W. 3 namely Munni Khatoon, the victim, in examination in chief has stated the prosecution version only addition that initially Qaushar Ali committed rape upon her followed by co-appellant Sk. Neyaz and while keeping her in confinement at the house of co accused Meena Devi, they also threatened if she will raise any hue and cry they will shoot at her private part. On recovery at the instance of her family members etc. she was brought to police station where someone at the instance of police recorded her statement in application form and thereafter she was sent for medical examination and recorded statement under section 164 of Cr. P.C. She was subjected to lengthy cross examination in different phases. In para 2 & 3 of the cross examination, she states that she practically remained senseless during confinement in the house of Bhikhar Paswan and during her statement recorded under section 164 of Cr. P.C. was never read over to her. In subsequent paragraphs she has stated about the resistance shown by her and while being pushed to bamboo clamp, gun was also used, after getting the gun introduced during cross examination and suggestion appears given that such statement was not made by her before police which carries no manner in law. P.C. was never read over to her. In subsequent paragraphs she has stated about the resistance shown by her and while being pushed to bamboo clamp, gun was also used, after getting the gun introduced during cross examination and suggestion appears given that such statement was not made by her before police which carries no manner in law. In para 23 it has come that at the time of his being taken out of her house there was none from her family and it is further consistent statement that her mouth was tied after pushing some cloths, naturally it was not possible for her to raise any substantial alarm, drawing attention of anyone, even having their houses around the passage from her house to the house of Bhikhar Paswan. Moreover, it was the occurrence of winter night. In para 35 it has also come that before pushing cloths in her mouth she tried to raise alarm but could not succeed. In para 38 it has come that after being recovered she was brought the house of Serpanch along with good number of villagers. It has also taken from her that just a year or two of her deposition she had been married but as fifth wife of her husband. This is sufficient to indicate the whole life miseries to be faced by her. 12. P.W. 7 Doctor Manju Jaiswal examined the victim and found that: “there were no external and internal injuries on private part. Hymen was ruptured. Old leg of hymen was present. Vaginal orifice admit one finger. No foreign material found on her private parts. Accordingly to pathologist M.J.K. Hospital, Bettiah no Spermatozoa were found on veginal swab examination. According to radiologist M.J.K. Hospital, Bettiah the epiphysis of lower end of radius ulna has appeared but not fused with lower end of radius ulna. Epiphysis of both the eliat creast has appeared but not fused completely with the body of hip bone.” 13. No doubt doctor has not found any Spermatozoa but in her examination and cross examination it is there that after 48 hours it is not possible to locate, and victim was examined by her roughly more than 60 hours of such sexual assault. Further, other observations after examination of private parts indicates victim was assaulted and also she was not in habit of sexual relationship. Further, other observations after examination of private parts indicates victim was assaulted and also she was not in habit of sexual relationship. Such observation of the doctor after examination on the victim corroborates the fact that she was subjected to sexual assault and apart from the appellants there is none else against whom any such allegation is leveled or even there is any suggestion on behalf of the defence about the victim having such relationship with anyone else or to that extent her character is not good. 14. P.W.8 Vijay Bahadur Singh Investigating Officer, who after institution of the case recorded statement of the witnesses before submission of charge-sheet and due to transfer he handed over charge of investigation to Officer Incharge who submitted charge-sheet. He has also proved Exhibits - 2 & 3. 15. From the materials as discussed above, it is crystal clear that the victim had been subjected to gang rape at the instance of the appellants, and it is the victim who had to pay the cost for whole life on being fifth wife of her husband. There appears no delay caused in institution of the case and it not always necessary to bring the police into action immediately after missing of anyone especially in the case of unmarried girl of the family some extra time always consumed since it involved question of family prestige and future of the girl. The law is clear on the point in the case of “State of Uttar Pradesh Vs. Manoj Kumar Pandey” reported in (2009) 1 S.C.C. 72 it is held as follows:- “…………….Apart from that normal rule regarding the duty of the prosecution to explain the delay in lodging FIR and the lack of prejudice and/or prejudice caused because of such delayed lodging of FIR does not per se apply to cases of rape ………….” 16. In the instant case, she was found missing in the night roughly around 24 hours and on the following day the case was instituted in between. As per defence version also there was a Panchayati, naturally it has consumed some time and it further indicates attempts on behalf of the prosecution to not proceed with the case rather in order to save the family prestige and future prospect of the girl if matter be amicably settled, but when nothing could be done case was instituted. 17. As per defence version also there was a Panchayati, naturally it has consumed some time and it further indicates attempts on behalf of the prosecution to not proceed with the case rather in order to save the family prestige and future prospect of the girl if matter be amicably settled, but when nothing could be done case was instituted. 17. To support false implication on the ground of refusal to marry no material has been produced, some omission in statement of the victim recorded under section 164 of Cr. P.C. (Exhibit – A), is tried to emphasis by learned counsel for the appellants but unfortunately neither any attention was drawn to the victim nor Exhibit – A or even Exhibit – B have been taken in evidence after completing the requirement under law. When during cross examination the victim has stated that her statement recorded under section 164 of Cr. P.C. was not read over to her apart from normal course it was for the defence, if inclined, to take advantage of any alleged omission or commission therein to get the magistrate who recorded her statement, examined. Similarly the argument advanced that just two days before when father of appellant refused to marry his son with the girl, there was a threatening given by her parents giving rise to proceeding under section 107 of Cr. P.C. for that Exhibit – B, has been produced, but it is nothing, but a report of police officials who was not even brought to support such statement made after inquiry, consequently Exhibit – A & B though have got no help. 18. On overall consideration of materials available as discussed above, finding no merit in this appeal, it is hereby dismissed. Appeal dismissed.