JUDGMENT P.S. Rana, Judge. Present appeal filed under Section 378 of the Code of Criminal Procedure, 1973 against judgment of acquittal dated 10.8.2006 passed by learned Sessions Judge Chamba Division in Sessions Case No. 31 of 2005, titled State vs. Giana and another relating to FIR No. 11 of 2005, dated 13.03.2005, registered in Police Station Khairi, District Chamba H.P. under Sections 376, 511, 341, 506/34 IPC. Brief facts of the prosecution case 2. Brief facts as alleged by the prosecution are that on dated 14th March 2005 complainant filed a criminal complaint Ext.PW2/A before the Superintendent of Police Chamba alleging that on dated 12th March 2005 at about 9 AM the prosecutrix had gone to the forest to fetch the grass for the cattle. It is alleged by the prosecutrix that on the way there is one rivulet. It is further alleged by the prosecutrix that accused namely Giana and Kalu misbehaved with prosecutrix and blocked her path. Prosecutrix further alleged that when she tried to run away then accused namely Giani and Kalu caught her and laid her on the ground. It is further alleged by the prosecutrix that co-accused No. 2 Kalu caught the prosecutrix from her arms and co-accused No.1 namely Giana removed her clothes and salwar. It is further alleged by the prosecutrix that when she cried for help, then co-accused No. 1 namely Giana pressed her neck and told that in case prosecutrix would raise alarm then he would kill the prosecutrix. It is further alleged by the prosecutrix that co-accused No. 2 namely Kalu caught the prosecutrix from her arms and co-accused No. 1 namely Giana forcibly committed rape upon her. It is further alleged by the prosecutrix that when co-accused No.1 Giana completed criminal offence of rape upon prosecutrix, co-accused No. 2 Kalu attempted to rape her. It is further alleged by prosecutrix that independent witness namely Chet Ram saw the entire incident of criminal offence and rescued the prosecutrix from the clutches of the accused persons. It is further alleged by complainant that husband of the complainant is old person and co-accused Giana told the prosecutrix that he would commit sexual intercourse with the prosecutrix in future also. It is further alleged by complainant that husband of the complainant is old person and co-accused Giana told the prosecutrix that he would commit sexual intercourse with the prosecutrix in future also. FIR No. 11 of 2005 was registered at Police Station Khairi, District Chamba H.P. Matter was investigated and challan was filed against co-accused Giana under Sections 376, 341, 506 IPC read with Section 34 IPC and challan was filed against co-accused Kalu under Section 511 read with Section 376 IPC and under Sections 341, 506 read with Section 34 IPC. 3. Learned Sessions Judge framed the charge against the accused persons on 5th October, 2005. Accused persons denied charges and claimed to be tried. 4. Prosecution examined following eleven witnesses in all in support of its case:- PW No. Name of the witness 1. Dr. Indu Dhiman. 2. Rano Devi. 3. Chet Ram. 4. Dr. Man Singh. 5. Bainsu Ram 6. Lal Singh. 7. Ramesh Singh. 8. Constable Karam Singh. 9. ASI Ravinder Kumar. 10. ASI Rajmal. 11. HC Balwant Singh 4.1 The prosecution also produced the following pieces of documentary evidence in support of its case:- Sr.No. Description of the document Exhibit 1. Application for MLC Ext.PW1/A 2. Letter dated 24.5.2005 Ext.PW1/B 3. . Report of FSL/chemical report Ext.PW1/C 4. MLC of the prosecutrix Ext.PW1/D 5. Complaint filed by the prosecutrix to learned S.P. Chamba H.P. Ext.PW2/A 6. Recovery memo of salwar Ext.PW2/B 7. Application for medical examination of the accused Ext.PW4/A 8. MLC of co-accused Giana Ext.PW4/B 9. MLC of co-accused Kalu Ext.PW4/C 10. Recovery memo Ext.PW5/A 11. Recovery memo Ext.PW6/A 12. Copy of R.C. Ext.PW8/A 13. . FIR Ext.PW9/A 14 Site plan Ext.PW10/A 15. Arrest memos Ext.PW10/B & Ext.PW10/C 16. . Statement of Lal Singh Ext.PW10/D 5. Statements under Section 313 of the Code of Criminal Procedure, 1973 were recorded and accused examined two defence witnesses namely Mangat Ram DW-1 and Mohinder Singh DW-2. 6. Learned Sessions Judge Chamba acquitted both the accused persons by way of giving them benefit of doubt. 7. Feeling aggrieved against the judgment passed by learned Sessions Judge State of Himachal Pradesh filed the present appeal on the following grounds of appeal. It is pleaded that impugned judgment passed by learned trial Court is contrary to law and the proved facts and based on conjectures and surmises. 7. Feeling aggrieved against the judgment passed by learned Sessions Judge State of Himachal Pradesh filed the present appeal on the following grounds of appeal. It is pleaded that impugned judgment passed by learned trial Court is contrary to law and the proved facts and based on conjectures and surmises. It is further pleaded that the learned trial Court did not appreciate oral as well as documentary evidence adduced by the State. It is further pleaded that there are no material contradictions in the statement of the prosecutrix and the complaint filed by her which goes to the root of the case. It is further pleaded that the minor contradictions in the criminal case do not effect the merits of the criminal case in any manner. It is further pleaded by the State that evidence could not be narrated by the witnesses in mechanical manner and minor contradictions are bound to come in the criminal case. It is further pleaded by the State that testimony of prosecutrix is corroborated by Chet Ram PW3 in positive, cogent and reliable manner and it is further pleaded that in fact it was a criminal case and charge under gang rape should have been framed by the learned trial Court. It is also pleaded that husband of the prosecutrix was not eye witness of the incident and his testimony was not material for the just decision of the case. It is further pleaded that delay in lodging the FIR was not intentional and delay has been explained by the prosecution in a satisfactory manner. It is pleaded that the prosecutrix had no motive to falsely implicate the accused persons. It is further pleaded that absence of marks of any abrasion, laceration and contusion on the thighs and external genetaea did not effect the merits of the present case. Prayer for acceptance of appeal sought. 8. We have heard learned Additional Advocate General appearing on behalf of the State and learned counsel appearing for respondent No.1 at length and also perused the entire record carefully. Learned counsel appearing on behalf of the respondent No.1 has referred the decision of the Supreme Court passed in 2012 (11) SCC 362 titled O.M. Baby vs. State of Kerala and 2005 Cri.L.J. 1519, titled Krishan Lal vs. State of Rajasthan. 9. Learned counsel appearing on behalf of the respondent No.1 has referred the decision of the Supreme Court passed in 2012 (11) SCC 362 titled O.M. Baby vs. State of Kerala and 2005 Cri.L.J. 1519, titled Krishan Lal vs. State of Rajasthan. 9. Question that arises for determination before us in this appeal is whether learned trial Court on the basis of material on record was justified in finding that both accused persons are entitled for benefit of doubt. Oral Eyewitnesses of criminal offence 10. In the present case eye witnesses of the incident are PW2 the prosecutrix and PW3 Chet Ram. PW2 the prosecutrix has stated in a positive manner that on dated 12th March, 2005 at about 9 AM, she had gone to fetch the grass from nearby Koel forest. Prosecutrix has further stated that there is a rivulet between two hillocks and when she reached rivulet, she met both the accused persons present in the Court. Prosecutrix has further stated in the positive manner that the accused persons started outraging her modesty and laid her on the ground. Prosecutrix further stated that co-accused Kalu caught hold the prosecutrix from her hands and another co-accused namely Giana removed her clothes and committed rape upon her/prosecutrix. Prosecutrix has further stated that incident of rape was witnessed by one Chet Ram who rescued proseuctrix from the clutches of the accused persons. Prosecutrix further stated in her testimony that while the accused persons were leaving from the spot after committing criminal offence they threatened the prosecutrix not to disclose the incident to any person otherwise they would kill her. Prosecutrix has stated that after making arrangement of money prosecutrix proceeded to Chamba on foot and stayed at village Dandi as there was no bus service from their village to village Dandi which is quite far away. Prosecutrix further stated that on dated 14th March, 2005, prosecutrix took the bus and reached Chamba during day time and thereafter complaint was lodged to Superintendent of Police Chamba on the same day by prosecutrix. Prosecutrix has identified her broken pieces of bangles and she has also stated that she handed over her salwar to the police which was took into possession vide seizure memo which bears her thumb impression. Prosecutrix has identified her salwar in the Court which was worn by her at the time of commission of criminal offence of rape. Prosecutrix has identified her broken pieces of bangles and she has also stated that she handed over her salwar to the police which was took into possession vide seizure memo which bears her thumb impression. Prosecutrix has identified her salwar in the Court which was worn by her at the time of commission of criminal offence of rape. Prosecutrix has stated that she was medically examined vide MLC Ext.PW1/D. In cross examination she stated that she is illiterate. She has stated that she did not sustain any injury. She has denied the suggestion that she had quarrelled with Giana’s wife on some matter. Prosecutrix has admitted that she is Harijan by caste and co-accused Giana is Rajput by caste and another co-accused Kalu and independent witness Chet Ram are Harijan by caste. She has denied suggestion that she was not caught by accused persons namely Giana and Kalu and also denied that she was not raped as alleged by her. 10.1. PW3 Chet Ram independent eye witness has stated that he is shepherd by profession and he used to graze his sheep and goats in Koel and Lingiyali forests during winter season. He has stated that on 12th March, 2005 he was grazing his sheep and goats in Koel forest and when he was present on the hill side of the forest he heard the cries of a lady and then he went towards the rivulet side from where the noise came. He has stated that on reaching there he saw that prosecutrix was lying on the ground and co-accused Giana was committing rape upon the prosecutrix. He has stated that salwar of the prosecutrix was lying nearby and another co-accused namely Kalu had caught hold the hands of the prosecutrix. He has stated that he shouted upon which the accused persons left the prosecutrix. He has stated that the accused persons threatened him not to disclose the incident to anybody otherwise they would kill him and then the accused persons disappeared from the scene of occurrence and he also proceeded to the place of his work. He has identified the accused in Court. He has denied the suggestion that the accused persons did not commit any criminal offence and he has deposed falsely against the accused persons. Corroborative Oral Medical Evidence 10.2. PW1 Dr. He has identified the accused in Court. He has denied the suggestion that the accused persons did not commit any criminal offence and he has deposed falsely against the accused persons. Corroborative Oral Medical Evidence 10.2. PW1 Dr. Indu Dhiman, Medical officer Zonal Hospital Chamba has stated that the police has filed an application Ext.PW1/A to the CMO Chamba for medical examination of the prosecutrix and she examined the prosecutrix aged 34 years resident of village Koel P.O. Bhanad Tehsil Salooni District Chamba on 16.3.2005 at 12.25 PM. She has stated that as per the alleged history the prosecutrix was caught forcibly while she was cutting the grass in the forest by accused Giana and Kalu and was sexually assaulted by co-accused Giana. She has stated that the prosecutrix had changed the clothes which were worn by the prosecutrix at the time of sexual assault and she had also taken the bath. She has further stated that on general examination she observed that the prosecutrix was conscious cooperative well oriented to time place and person. She has also stated that the prosecutrix was married and she had given birth to six children and the birth of her last child was eight months back. She has stated that her last menstrual history was normal. She has stated that on local examination, the breast of the prosecutrix was normal and there was no sign of laceration, contusion on the breasts. She has further stated that there was no sign of violence on the abdomen of the prosecutrix and there was no mark of abrasion, laceration and contusion on the thighs and external genetaea of the prosecutrix. She has stated that there was no evidence of blood stains on the clothes or whitish spots on the thighs or external genetaea, labia majora and labia manora were normal and vestibule and clitoris were normal. She has also stated that vaginal introitus could introduce two fingers easily. She has further stated that she preserved the vaginal swab and sent for chemical analysis. Vaginal swab was blood stained. She has stated that she issued MLC Ext.PW1/D and she also identified the prosecutrix in Court. She has stated that the semen was likely to wash away after 4-5 days of the incident due to passing urine and if the prosecutrix took the bath and passed the urine repeatedly then semen would also disappear. Vaginal swab was blood stained. She has stated that she issued MLC Ext.PW1/D and she also identified the prosecutrix in Court. She has stated that the semen was likely to wash away after 4-5 days of the incident due to passing urine and if the prosecutrix took the bath and passed the urine repeatedly then semen would also disappear. In cross examination she stated that she did not notice any semen fluid on the vaginal part of the prosecutrix when she examined the prosecutrix and she has stated that a woman having 5/6 children is habitual of sexual intercourse. 10.3. PW4 Dr. Man Singh has stated that on 19th March, 2005 an application Ext.PW4/A was filed by the Investigating Agency for medical examination of accused Giana and Kalu. He has examined accused Giana and observed that he was fit to perform sexual intercourse and he has stated that he issued MLC Ext.PW4/B which is in his hand and bears his signatures. The sample of semen of co-accused Giana taken and sent it to FSL, Junga for chemical examination. He has also stated that as per the report of FSL the sample of semen was of human being. He has stated that he also examined co-accused Kalu and found him to be fit to perform sexual intercourse. He issued MLC Ext.PW4/C which is in his hand and bears his signatures. In cross examination, he has stated that he did not receive the report of FSL. He has seen the report in Court when he appeared as a witness. Corroborative oral evidence 10.4. PW5 Shri Bainsu Ram has stated that he joined the investigation on 12th March, 2005. The underwear of co-accused Giana was taken into possession and was sealed. He has stated that seizure memo Ext.PW5/A bears his signatures. He has identified the underwear Ext.P-8 in Court. He has stated that parcel was sealed in his presence and stated that seal was handed over by the Investigating Agency to him, but same was lost. He has stated that he did not file any report about missing of seal. 10.5. PW7 Ramesh has stated that in the month of March, 2005 he was posted as LHC at P.S. Khairi. He has stated that he did not file any report about missing of seal. 10.5. PW7 Ramesh has stated that in the month of March, 2005 he was posted as LHC at P.S. Khairi. On 17th March, 2005 he joined the investigation of the case and he has stated that broken pieces of bangles were lying beside the rivulet in Koel forest which were taken into possession in a parcel. He has stated that prosecutrix also produced salwar Ext.P-5 which was taken into possession and sealed. He has stated that on 20th March, 2005 the Investigating Agency took into possession the underwear of the accused from his house which was worn by accused at the time of occurrence. He has denied the suggestion that no broken pieces of bangles were taken in his presence. He has denied that he has deposed falsely being the police official. 10.6. PW8 Karam Singh stated that he remained posted as Constable on general duty in P.S. Khairi from 2004 to May, 2005. He has stated that on 3rd April, 2005 MHC Balwant Singh of P.S. Khairi handed over him four sealed parcels vide R.C. No. 15/2005 for being taken to FSL Junga. He has stated that on 4th April, 2005 he deposited the parcels with FSL Junga and on return, the receipt was deposited with MHC. He has stated that case property remained intact in his custody. He has stated that copy of RC is Ext.PW8/A. 10.7. PW9 ASI Ravinder Kumar has stated that from the year 2003 till January, 2005 he remained posted in P.S. Khairi. He has stated that FIR Ext.PW9/A was registered on the basis of complaint Ext.PW2/A which bears his signatures. He has stated that he is conversant with the signatures of Dy.S.P. D.K.Chaudhary. He has stated that he prepared the challan and filed the same as such. PW10 ASI Rajmal has stated that from the year 2004 to May, 2005 he remained posted as ASI. He has stated that investigation was handed over to him. He has stated that village Koel is at the distance of 21 Kms. from P.S. Khairi and the entire distance is to be covered on foot. PW10 ASI Rajmal has stated that from the year 2004 to May, 2005 he remained posted as ASI. He has stated that investigation was handed over to him. He has stated that village Koel is at the distance of 21 Kms. from P.S. Khairi and the entire distance is to be covered on foot. He has stated that it takes more than 11 hours to cover the distance and he prepared the site plan after inspecting the spot Ext.PW10/A. He has stated that pieces of bangles were lying on the spot which were identified by the prosecutrix. He has stated that pieces of bangles were taken into possession after sealing the same. He has stated that salwar Ext.P5 was taken into custody vide memo Ext.PW2/B in the presence of marginal witnesses. He has stated that both the parcels were deposited with MHC Balwant Singh. He has stated that co-accused Giana produced his underwear Ext.P8 which was taken into possession and he filed the application for medical examination of the prosecutrix Ext.PW1/A. He has stated that he recorded the statements of prosecution witnesses. He has further stated that during the investigation, it was found that the accused committed the rape upon the prosecutrix nearby the rivulet. Co-accused Kalu caught hold the hands of the prosecutrix and co-accused Giana raped her. He has denied the suggestion that accused has been falsely implicated in the present case. 10.8. PW11 H.C. Balwant Singh has stated that during the mid of March-April, 2005, he remained posted as MHC at P.S. Khairi. He has stated that on 16th March, 2005 ASI sealed the parcel sealed with seal of hospital containing vaginal swab of the prosecutrix along with specimen seal and docket. He has stated that parcel contained the salwar of the prosecutrix and he has stated that on 19th March, 2005 one sealed parcel containing the semen of accused Giana along with specimen seal and docket of doctor was deposited with him. He has further stated that on 20th March, 2005 one sealed parcel sealed with seal ‘H’ containing underwear of Giana was also deposited with him and he entered the case property in the register and sent the case property to FSL Junga vide RC No. 15/05. He has stated that case property remained intact during his custody. He has further stated that on 20th March, 2005 one sealed parcel sealed with seal ‘H’ containing underwear of Giana was also deposited with him and he entered the case property in the register and sent the case property to FSL Junga vide RC No. 15/05. He has stated that case property remained intact during his custody. 11 Statements of the accused persons were recorded under Section 313 Cr.P.C. They have stated that false case has been filed. Co-accused Giana stated that the prosecutrix and his wife had quarrelled thrice and he has stated that false case has been filed against him. He has further stated that he is innocent and did not commit any criminal offence. Co-accused Kalu has stated that he has been falsely implicated in the present case because wife of co-accused Giana had quarrelled with the prosecutrix. 12. Accused persons examined DW1 namely Mangat Ram. He has stated that village Koel is at the distance of two Kms. from his village and he has stated that bus service is only available from Khairi to Khill and if one has to go on foot by short cut route, it takes two hours. 12.1 DW2 Maninder Singh has stated that he was posted as Clerk in HRTC Chamba from January, 2005 and he has brought the summoned record. He has stated that Koel village is at the distance of 3 Kms. from Khairi and further stated that another route via Manglera started on 18th November, 1996. Documentary evidence 13. Ext.PW1/D is the MLC of the prosecutrix. As per the MLC Ext.PW4/B co-accused was capable of performing sexual intercourse. As per the medical examination of Kalu Ram, Ext.PW4/C, co-accused Kalu was also capable of performing sexual intercourse. Seizure Memo Ext.PW6/A qua the recovery of pieces of bangles is also proved by way of testimony of the prosecution witness. Road Certificate Ext.PW8/A, site plan Ext.PW10/A also proved by way of testimony of prosecution witnesses. As per the chemical report Ext.PW1/C placed on record, human semen was found from the samples of semen of co-accused Giana. Upon the salwar of the prosecutrix human semen was found. 14. Submission of learned Additional Advocate General appearing on behalf of the State that learned trial Court did not properly appreciate the oral as well as documentary evidence adduced by the prosecution is accepted for the reason mentioned hereinafter. Upon the salwar of the prosecutrix human semen was found. 14. Submission of learned Additional Advocate General appearing on behalf of the State that learned trial Court did not properly appreciate the oral as well as documentary evidence adduced by the prosecution is accepted for the reason mentioned hereinafter. In the present case prosecutrix has specifically stated in positive, cogent and reliable manner that she was forcibly raped by co-accused Giana in the forest and she has stated that other co-accused Kalu caught hold her arms. Testimony of the prosecutrix is further corroborated by independent eye witness namely PW3 Chet Ram. He has stated in positive manner that he heard the cries of the prosecutrix. He has stated that he saw that prosecutrix was lying on the ground and co-accused Giana was committing rape upon the prosecutrix and he has stated that salwar of the prosecutrix was lying nearby place of incident. He has further stated that other co-accused Kalu had caught hold the hands of prosecutrix. Testimonies of PWs 2 and 3 are trustworthy reliable and inspire confidence of the Court. There is no reason to disbelieve the testimonies of prosecutrix and independent witness. Accused did not adduce any positive evidence in order to prove that prosecutrix and independent eye witness of incident hostile animus against accused persons. The testimony of the prosecutrix is further corroborated by other corroborative witnesses i.e. PWs 4,5,6,7,8,9,10 and 11 and is also corroborated by chemical analysis report Ext.PW1/C whereby human semen was found upon the salwar of the prosecutrix. Even human blood was found upon the underwear of co-accused Giana. 15. Submission of learned counsel appearing on behalf of the accused/respondent Giana that there was no marks of laceration, abrasion or contusion on the thigh and external genetaea of the prosecutrix and on this ground judgment of learned trial Court be affirmed, is rejected being devoid of any merit for the reasons mentioned hereinafter. In the present case the prosecutrix has specifically stated that she was forcibly raped by co-accused Giana. She has also stated in a positive manner that co-accused, namely, Kalu caught hold her arms. There is no reason to dis-believe the testimony of the prosecutrix as it has been corroborated by PW3 Sh.Chet Ram who is the eye witness of the incident. The testimony of the prosecutrix is trustworthy and reliable. She has also stated in a positive manner that co-accused, namely, Kalu caught hold her arms. There is no reason to dis-believe the testimony of the prosecutrix as it has been corroborated by PW3 Sh.Chet Ram who is the eye witness of the incident. The testimony of the prosecutrix is trustworthy and reliable. It was held in case reported in AIR 1981 S.C. 559 Rafiq Vs. State of Uttar Pradesh that absence of mark of injuries on the person of the prosecutrix is not fatal in each case. 16. Another submission of the learned counsel appearing on behalf of the respondent-accused Giana that the husband of the prosecutrix has not been examined by the prosecution and on this ground appeal filed by the State of Himachal Pradesh be dismissed is rejected being devoid of any force for the reason hereinafter mentioned. We are of the opinion that non examination of husband of the prosecutrix who is not the eye witness of the incident is not fatal to the case of the prosecution. 17. Another submission of the learned counsel appearing on behalf of the respondent-accused Giana that testimony of the prosecutrix did not inspire confidence and quarrel took place between wife of co-accused Giana and prosecutrix and on the basis of the quarrel prosecutrix filed false criminal complaint against the accused persons is also rejected being devoid of any force for the reason hereinafter mentioned. Accused persons did not examine wife of co-accused Giana who is the best witness to prove that quarrel took place between the prosecutrix and the wife of accused Giana prior to registration of criminal case. It is settled law that prosecutrix cannot be considered as accomplice in an offence of sexual assault and her evidence cannot be equated with that of accomplice. (See: AIR 1972 S.C. 2661 Gurcharan Singh Vs. State of Haryana).The testimony of victim in case of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Court should find no difficulty to act on the testimony of victim of sexual assault alone to convict accused where her testimony inspires confidence and is found to be reliable. Corroborative evidence is not an imperative component of judicial credence in every rape case. Corroborative evidence is not an imperative component of judicial credence in every rape case. Corroboration as a condition for judicial reliance on the testimony of prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or girl subjected to sexual assault is not an accomplice to the crime but is victim of another persons lust and it is improper and undesirable to test her evidence with suspicion. Refusal to act on the sole testimony of a victim of sexual assault in the absence of corroboration, as a rule, is adding insult to injury suffered by the victim of sex offence. It is well settled law that corroboration is not a sine qua non for conviction in rape cases. It is also well settled law that discrepancies which do not go to the root of matter and do not shake evidence of prosecutrix shall not be attached undue importance. It was held in AIR 1983 S.C.753 B.B. Hirjibhai Vs. State of Gujrat, that refusal to act on the testimony of a victim of sexual assault in the absence of a corroboration as a rule is adding insult to the prosecutrix unless the evidence of prosecutrix suffer from basic infirmity or improbability. 18. Another submission of the learned counsel appearing on behalf of the respondent-accused that there is delay in lodging the F.I.R. and on this ground appeal filed by the State be dismissed, is also rejected being devoid of any force for the reason hereinafter mentioned. As per the prosecutrix story, the incident took place on 12th March, 2005 at about 9 AM in nearby Koel forest. The prosecutrix has stated that she went to her house in a weeping condition and after making arrangement of money she proceeded on foot to Chamba and stayed at village Dandi. The prosecutrix has stated that there was no bus service from her village to village Dandi which is quite far off from her village as it takes a full day to reach village Dandi. She has stated that on 14.3.2005, she took the bus and reached Chamba during day time and thereafter filed a criminal complaint before Superintendent of Police, Chamba. The prosecutrix is illiterate. Even PW10 ASI Rajmal has stated that the place of incident is about 21 Km. She has stated that on 14.3.2005, she took the bus and reached Chamba during day time and thereafter filed a criminal complaint before Superintendent of Police, Chamba. The prosecutrix is illiterate. Even PW10 ASI Rajmal has stated that the place of incident is about 21 Km. away where the bus service is available and he has stated in the positive manner that the entire distance was to be covered on foot and it requires more than 12 hours. He has also stated that the pieces of bangles were also lying at the spot. In view of the above stated facts and in view of the fact that the prosecutrix is a rustic villager and illiterate, we hold that the prosecution has satisfactorily explained the delay in lodging the F.I.R. and we hold that delay in lodging the F.I.R. is not fatal to the prosecution. 19. Another submission of the learned counsel appearing on behalf of the respondent-accused that no spermatozoa was found and on this ground the appeal filed by the State be dismissed, is also rejected being devoid of any force for the reason hereinafter mentioned. It is well settled law that discovery of spermatozoa in private parts of prosecutrix is not must to establish penetration. It was held that there are several factors which may negative presence of spermatozoa. It was held in (1996) SCC 2384 titled State of Punjab Vs. Gurmit Singh and others that the testimony of the prosecutrix must be appreciated in the background of the entire case. It was held that the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. See: (2000) 1 SCC 247 State of H.P. Vs. Lekh Raj and another, and (1992) 3 SCC 204 Madan Gopal Kakkad Vs. Naval Dubey and another. 20. Another submission of the learned counsel appearing on behalf of the respondent-accused that there is material contradiction between the testimony of the prosecutrix and eye witness PW3 Sh. Chet Ram and the appeal filed by the State be dismissed, is also rejected being devoid of any force for the reason hereinafter mentioned. It is stated by prosecutrix that accused Kalu gagged her mouth by putting his hand on her mouth but independent witness PW3 Chet Ram did not state in his testimony that co-accused Kalu gagged the mouth of prosecutrix by putting his hand on her mouth. It is stated by prosecutrix that accused Kalu gagged her mouth by putting his hand on her mouth but independent witness PW3 Chet Ram did not state in his testimony that co-accused Kalu gagged the mouth of prosecutrix by putting his hand on her mouth. We are of the opinion that it is not material contradiction which goes to the root of the case. It is well settled law that minor contradictions are bound to come in a criminal case. It is well settled law that the principle of falsus in uno falsus in omnibus is not applicable in criminal law. See: AIR 1980 S.C. 957 Bhe Ram Vs. State of Haryana, AIR 1971 S.C. 2505 Rai Singh Vs. The State of Haryana. It is well settled law that there is no hard and fast rule which could be laid down for appreciation of evidence. It is a question of fact and each case has to be decided on the facts as they stand in that particular case. See: AIR 1987 S.C. 1328 Dalbir Singh and others Vs. State of Punjab. It was held in AIR 1973 SC 944 Jose Vs. The State of Kerla (Fu Bench) that the conviction can be based on the testimony of solitary witness in criminal case if testimony of solitary witness is trustworthy and reliable. 21. Another submission of the learned counsel appearing on behalf of the respondent-accused that on the basis of testimony of DW1 Sh.Mangat Ram and DW2 Sh.Maninder Singh, the present appeal filed by the State be dismissed, is also rejected being devoid of any force for the reason hereinafter mentioned. We are of the opinion that DW1 Sh. Mangat Ram and DW2 Sh. Maninder Singh are not the eye witness of the incident and they were not present at the time when the incident of criminal offence of rape took place. Hence, we hold that it is not expedient in the ends of justice to disbelieve the testimonies of prosecutrix and PW3 Sh.Chet Ram, who are the eye witness of the incident. Even as per the testimony of PW1 Dr. Indu Dhiman, the vaginal swab of the prosecutrix was found with blood stains and as per the testimony of PW4 Dr.Man Singh, the accused persons were fit to perform sexual intercourse. Even as per the testimony of PW1 Dr. Indu Dhiman, the vaginal swab of the prosecutrix was found with blood stains and as per the testimony of PW4 Dr.Man Singh, the accused persons were fit to perform sexual intercourse. It is proved on record that broken pieces of bangle were also recovered from the place of incident where the offence of rape was committed. In the present case, we hold that testimony of prosecutrix is trust- worthy, reliable and inspire confidence of the Court. The testimony of the prosecutrix is corroborated by the independent witness PW3 Sh. Chet Ram. 22. Facts of case law cited by learned Advocate appearing on behalf of co-accused Giana and facts of present case are entirely different. Hence the case law cited by the learned counsel appearing on behalf of the respondent-accused is not applicable in the facts and circumstances of the present case. 23. No other points urged before us. 24. We hold that the learned trial Court did not properly appreciate the oral as well as documentary evidence adduced by the prosecution. Hence, we accept the appeal and set aside the judgment passed by learned Sessions Judge, Chamba in Sessions Case No.31 of 2005. 25. We hold that accused Giana has committed forcible rape upon the prosecutrix intentionally and voluntarily in furtherance of common intention and had threatened to the prosecutrix that in case she narrated the incident of rape to anybody he would kill her. Hence, we convict co-accused Giana under Sections 376, 341 and 506 read with Section 34 of the Indian Penal Code. We also convict co-accused Kalu Ram under Section 511 read with Section 376 IPC and under Section 341 and 506 IPC read with Section 34 of IPC as co-accused Kalu Ram had assisted co-accused Giana in commission of criminal offence of sexual assault. 26. Be listed for hearing on quantum of sentence on 16.6.2014 on which date accused persons be produced before us. Non-bailable warrants be issued against the convicted person(s).