JUDGMENT S.G. Shah, J. 1. The appellant has challenged his conviction by impugned judgment and order dated 19.9.2011 in Sessions Case No. 69 of 2010 by the Additional Sessions Judge, Nadiad, whereby, he was awarded RI of six months for committing offence under Section 342 with imprisonment of five years and penalty of Rs. 500/- with direction to undergo two months imprisonment in default of payment of fine for committing offence under Section 328 of IPC and RI of seven years with penalty of Rs. 1,000/- and to undergo additional imprisonment in default of payment of penalty for committing offence under Section 376 of IPC. However, all such imprisonment is to be undergone concurrently with set off period for which he remains in custody pending trial. 2. According to jail report dated 6.6.2015, appellant was arrested on 2.5.2010 and, therefore, till date he has undergone imprisonment of four years and six months out of total imprisonment of seven years. 3. The above referred conviction was result of a prosecution of the appellant pursuant to complaint registered at Matar Police Station as first C.R. No. 2 of 2011. In such FIR, it is the case of the complainant that on 30.4.2011 at about 7.00 pm, when victim and her sister-in-law, while returning from flour mill to reach their village, they have to seek lift of some vehicle on road and, thereupon, appellant has given them lift in his truck, but instead of taking them to their village, he took the truck at some other place and offered a drink to them which was having liquor content and, thereupon, when victim and her sister-in-law became drunk and in-sense to some extent, thereupon the appellant - accused has outraged the modesty of both of them and threatened them that if they complain or oppose his activity, he will throw them down from the truck and kill them and in such condition i.e. under his fear and intoxication because of drink given by the appellant, victim and her sister-in-law could not resist or oppose the accused - appellant who had thereupon committed rape on both of them, one after another by forcible intercourse and, thereupon, they were dropped at Alindra cross road. So far as place of incident is concerned, it is disclosed in complaint that the victims were residing in the field in the sim of village Pij and since there was no facility of flour mill, they have to go to village Ramol for grinding of wheat in a flour mill and from Ramol, accused has taken them to village Alindra instead of village Pij and then dropped them near cross road of Alindra. It is further contended that at the time of committing an offence of rape, the driving license of the appellant - accused had fallen down and it was carried by the victims with them when they were dropped near Alindra cross road from where they came to village Vaso in Rickshaw and then tried to reach their village Pij where they have to take shelter since it was late night and in early morning, they called one Ramesh - son in law of the victim who helped them to reach Police and hospital for further action. Thereby, they were taken to Nadiad Civil Hospital where they have narrated the incident and, thereupon, FIR came to be lodged for the offence punishable under Section 342, 327 and 376 of IPC with Matar Police Station as First CR No. 54 of 2010. 4. Based upon such complaint, Investigating Agency has inquired the matter and filed a chargesheet against the appellant before the Court of law. The history of investigation is well described in the chargesheet and in impugned judgment and, therefore, I do not intend to reproduce it in detail. 5. I have heard learned advocate Mr. Pratik B. Barot for the appellant at length and learned APP Mr. K.L. Pandya for the respondent - State. I have also perused the R & P including paper-book contending all material evidence in the form of deposition of all the witnesses and documentary evidence proved by the investigating agency during the trial. 6. The sum and substance and defence story is to the effect that there was consent by both the ladies in enjoying physical relation with the accused and, therefore, the conviction is unwarranted because victims are aged above thirty years. In support of such submission, the accused is further relying upon the deposition of some Panchas who turned hostile. 6. The sum and substance and defence story is to the effect that there was consent by both the ladies in enjoying physical relation with the accused and, therefore, the conviction is unwarranted because victims are aged above thirty years. In support of such submission, the accused is further relying upon the deposition of some Panchas who turned hostile. So far as defence by the appellant - accused is concerned, it is no-where stated in his further statement that how he is concerned or connected with the victims so as to get their consent for entering into such physical relationship and that too at such a place i.e. in a truck on a highway, more particularly, when it is not disputed fact that victims and accused were not knowing each other and that victims had asked for lift and accused had extended lift to them and, thereafter, instead of dropping them at the place where they wanted to go, he took them at some other place. Even if we peruse the cross examination of victims on behalf of the appellant during trial, though there are some suggestions that no such offence has taken place, some of the suggestions are admitting the act of physical relationship and, therefore, now it is for the appellant - accused to prove the consent, if not beyond reasonable doubt then it is to be treated as preponderance of probability, that in-fact it was consent by that victims. To that extent we need to examine the entire evidence before deciding the fate of the appellant since he has been convicted for seven years and he has been undergoing imprisonment for almost for five years. 7. At Exh. 5, the Sessions Court has framed the charge pursuant to disclosure of facts in FIR and what has been revealed during investigation is that appellant has committed the offence as referred hereinabove. When accused has not admitted his guilt, the prosecution has examined several witnesses and produced relevant documents which are as under: - "7.1 PW - 1 at Exh. 10, PW - 2 at Exh. 12, PW - 3 at Exh. 13, PW - 4 at Exh. 15, PW - 5 at Exh. 16 and PW - 6 at Exh. 18 are panch witnesses and as usual, they do not support the case of prosecution case and, therefore, they were declared hostile. 10, PW - 2 at Exh. 12, PW - 3 at Exh. 13, PW - 4 at Exh. 15, PW - 5 at Exh. 16 and PW - 6 at Exh. 18 are panch witnesses and as usual, they do not support the case of prosecution case and, therefore, they were declared hostile. Thereby, none of the panch witnesses has admitted about the panchnama of recovery of clothes from the victim and the accused and also the place of incident and also the truck in question wherein offence was committed. However, none of such hostile witness can confirm that no offence at all has been committed or that there is no evidence against the accused so far as commission of such offence is concerned or that there was consent by the victims. As against that, Investigating Officer has deposed that he has taken care of investigation in proper manner, but unfortunately some of the witnesses became hostile though they have admitted their signature in the Panchnama. Thereby, at-least say of the Investigating Officer for the Panchnama on the day when they were executed cannot be ignored. 7.2 PW - 7 at Exh. 19 is one of the victims who has narrated the incident in detail but for the sake of brevity, her entire examination in chief is not required to be reproduced here since it is well described in the evidence and the impugned judgment. If we check her cross examination, it becomes clear that such victims belonging to labour class and hence could not explain each and every small details like difference between truck and tempo and difference between similar type of colors but it is also equally certain that though victims had taken lift on their own from the accused, there is no evidence to prove that there was consent by them even for physical relationship which otherwise amounts to rape, by the accused. On the contrary, it is re-confirmed that she had become unconscious because of some drink offered to her and since it was dark, the accused was able to commit the offence of rape upon them. The most important admission is with reference to the identity of the appellant when license of the appellant was taken by the victims with them. Such documentary evidence negativate the defence regarding non-involvement of the accused in any activity with the victims. The most important admission is with reference to the identity of the appellant when license of the appellant was taken by the victims with them. Such documentary evidence negativate the defence regarding non-involvement of the accused in any activity with the victims. If at all, accused wants to prove that he had never given lift or he had never committed an offence of rape, probably, he would have to prove it by proper and cogent evidence but when his license was found with the victims and when another witness has confirmed the presence of his truck at the place of incident, he probably had no option but to plead the defence of consent by the victims. However, the deposition of the victims specifically confirms that accused could not prove their consent either express or implied in any manner whatsoever. Thereby, when accused has to admit his presence at the place of incident and he pleads consent of the victims, then on the contrary; there is a presumption against the appellant, when victims have categorically narrated the incident in clear words about the commission of offence of rape by the accused. It is clear and obvious that no lady would allege such an offence against the person who is not known to him. The lengthy cross examination of the victim is to prove that victim was not telling truth but victim has narrated each and every issue in proper manner in her cross examination and, therefore, her deposition cannot be thrown out. The witness has proved the FIR at Exh. 20 which is corroborative with the factual details narrated hereinabove, hence, contents are not reproduced again. 7.3 The witness was recalled to ascertain certain things but though such permission was granted to cross examine the witness further, appellant could not prove anything in his favour. So far as filing of FIR at belated stage is concerned, it is categorically explained by the victim that they had been to their house first and that accused has given them threat and drink and, therefore, they could not either resist the commission of offence or report it to the family members at the earliest, since they were under the influence of liquor before and after the incident at the behest of the accused. 7.4 PW - 8 is another victim and there is similar situation like the previous witness whereby except proving certificate regarding accused issued by the State Government, there is no material difference in her statement both, in her examination in chief, so also in cross examination. Thereby, the second victim not only corroborated but also supports the prosecution case and appellant - accused could not prove either consent or his absence at the place of incident while cross examining the second victim. 7.5 PW - 9 at Exh. 33 is Dr. Nasar Kayambhai Desar, who has also narrated the details in confirmation of prosecution case since he has examined the victim, confirming that the victim has conveyed the same story to him which is disclosed in the FIR and though he could not confirm the commission of offence of rape, there is nothing in his deposition which can help the accused to confirm his defence of either consent or his absence. In fact, this alternative defence itself is unwarranted, inasmuch as, either there can be a defence of non-commission of offence at all or consent, but when there is a defence of consent, the defence of non-commission of offence does not survive. Doctor has also proved the medical case paper and medical certificate on record which are not much material at present when we are going to rely upon the FSL report of the sample collected by such Doctor. However, to that extent, deposition of the Doctor confirms the collection of samples and accused could not prove anything in his favour so far as such samples are concerned. Thereby, if result of such samples are against the accused, then, there is no option but to confirm that he has committed an offence as alleged. 7.6 PW - 10 at Exh. 44 is one Babubhai Virsinghbhai Parmar, who is brother-in-law of the son-in-law of one of the victim and who accompanied Ramesh, son-in-law of the victim to help the victims to reach the hospital. Though, he is also relative of the victims, he has narrated the knowledge of incident received by him which corroborates the other evidence and appellant - accused could not bring out any contradiction or material either to disprove the case of prosecution or to prove his defence of non-commission of offence by him or consent by victims. 7.7 PW - 11 at Exh. 7.7 PW - 11 at Exh. 45 is Rameshbhai Pujabhai Damor, who is son-in-law of one of the victim. He has narrated a story about the intimation by victim to him. Though, he is also relative of the victims, he has narrated the knowledge of incident received by him which corroborates the other evidence and appellant - accused could not bring out any contradiction or material either to disprove the case of prosecution or to prove his defence of non-commission of offence by him or consent by victims. 7.8 PW - 12 at Exh. 46 is an employee Hemantbhai Ramanlal Joshi, who is working in the Mamlatdar Office, Limkheda. He proves the case of the victims. 7.9 PW - 13 at Exh. 49 is Kalpnaben Hemantbhai Patel. She is a material witness. However, she was not cross-examined at all. She is owner of the truck and she confirms that accused was serving as a driver on her truck, though she was not knowing about the incident. It is confirmed that accused was in-charge of the truck wherein offence has been committed by its driver and when owner of the truck confirms that accused was driver on such truck and when victims were able to prove his identity because of his driving license which was carried by them after the incident, there is no other option but to confirm that it was appellant - accused who was there in the truck as a driver while giving lift to the victims and thereby when victims deposed that he has committed offence as alleged, there is no question of non-commission of offence by the accused in absence of any other cogent and reliable evidence to prove that it was not the appellant - accused at all at the relevant point of time. 7.10 The other evidence is at Exh. 50 in form of PW - 14 namely Vinodbhai Trikambhai Makwana who also confirms the presence of truck near his house at the time of incident, though he did not support the entire story recorded by Police in his statement he confirms and admits that a truck was lying at the particular place which is near to his house and that he came to know that two ladies were raped in such truck on a previous night. Such disclosure is sufficient to confirm the commission of offence at the place. Such disclosure is sufficient to confirm the commission of offence at the place. If such evidence is coupled with other evidence which is discussed hereinabove so as to confirm the presence of the accused with an allegation by the victims against the accused, then practically it is for the accused to prove his absence or consent as the stand of defence taken by him. Therefore, in absence of any evidence to either disprove the prosecution story or to either prove absence of the accused on the place of incident or consent by the victim in entering into such physical relationship with him, there is no reason to discard the version of two women who have no reason whatsoever to file false complaint against such accused - appellant who is otherwise not known to them and when there is no other reason or evidence to show that victims have filed a false complaint with some ulterior motive against the accused. In addition to such verbal evidence, there is positive scientific evidence in the form of FSL report, which confirms the presence of sperm in sample taken from the body and private part of the victims. 7.11 PW - 15 at Exh. 51 is Jhangir Roshanbhai Diwan, Deputy Superintendent of Police, Kheda @ Nadiad has investigated the crime and he has narrated the history of investigation and proved the relevant documentary evidence on record. He also confirms that the previous witness being PW-14 has stated in his statement before him that he found a truck near his house with two ladies abusing the truck driver because truck driver has committed rape upon them. During cross examination of Investigating Officer, the accused could not prove either of his defence except recalling certain contradictions from the evidence of other witnesses. He also proves certain documentary evidence regarding communication with Medical Officer and FSL. 7.12 PW - 17 at Exh. 64 is Dr. Ramanbhai Raijibhai Bharwad who has collected the blood and other samples from the body of both the victims and the accused and he proves his activity for such collection and case paper by him. During his cross - examination, nothing can be proved in favour of the appellant. He also produced a statement of the accused - appellant recorded by him which is at Exh. During his cross - examination, nothing can be proved in favour of the appellant. He also produced a statement of the accused - appellant recorded by him which is at Exh. 67, wherein, accused has admitted that he entered into physical intercourse with both the victims but on their consent and he further confirms in statement that both the ladies have taken his license and Rs. 500/- in cash from pocket of his shirt. Though such statement may not be considered against the appellant - accused to confirm his conviction, the fact remains that the Medical Officer has no reason whatsoever to tell a lie on such ground when he is not having any enmity or connection whatsoever either with the accused or with the victims. 7.13 The most important evidence is in the form of FSL report which is proved on record at Exhs.55 and 56, wherein, there is positive conclusion by the Scientific Officer of FSL that there was presence of sperm and saliva in vaginal swab of victims and that blood group of sperm taken from the accused tallies with the blood group of sperm found on the cloths and some body part of the victim. Such positive report of FSL gives confirmation of commission of offence of rape, inasmuch as, otherwise there is no reason of presence of sperm of same group of accused in samples of victims, if accused was not present at all and if no such incident had taken place as pleaded by the accused. 7.14 The line of cross examination when try to suggest that it was not possible for a man to enter into physical relationship at the place of incident i.e. back seat of the truck and that too in presence of another lady, goes to show that appellant wants to plead and prove total denial of any activity as alleged." As against that, his presence and disturbance with two ladies is proved by independent witness and his driving license which was carried by the victims to the Investigating Officer while lodging the complaint which was taken by them from the place of incident i.e. truck. In view of such facts and circumstances, it is difficult to believe the defence of absence of accused or non- commission of offence as submitted. In view of such facts and circumstances, it is difficult to believe the defence of absence of accused or non- commission of offence as submitted. Similarly, if we check the cross examination in detail, it gives a clear impression that in the alternative, appellant has tried to plead and prove that if at all there was some incidents, it was by consent of both the sides. However, in absence of any reason for consent when both the victims have categorically and in clear words alleged against the accused regarding commission of such crime, there is no reason to discard their evidence. Here also, evidence of PW - 9 is much material when he confirms that he saw a truck and women quarreling with the truck driver for committing rape upon them. Therefore, even consent is not proved on record. 8. Based upon above discussed evidence, if we peruse the impugned judgment and order, though being a first appeal, this Court has to scrutinize the entire evidence to ascertain the proper appreciation of it by the trial Court, the discussion of evidence and law applicable to such case by the trial Court makes it very clear that there is no possibility of other interpretation or appreciation of evidence and thereby, there is neither irregularity nor illegality in the impugned judgment so as to interfere with such reasoned judgment only because appellant - accused is praying mercy in addition to his legal right of acquittal based upon his submissions which are answered hereinabove. 9. The trial Court has rightly referred the fifth clause of Section 375 of IPC to consider the commission of offence of rape in given circumstances and considering the age of the victim, trial Court has awarded practically minimum sentence to the accused which cannot be interfered only because Appeal is preferred. 10. The trial Court described material evidence and evidence on record in proper manner and perspective in the judgment and I do not find any substance in this Appeal so as to interfere and disturb such determination, conclusion and judgment. 11. The trial Court has also considered the citations referred by the appellant - accused and, therefore, there is nothing in the Appeal so as to interfere such reasoned judgment. 12. Therefore, there is no substance in the Appeal and hence the same is dismissed. R & P be sent back to the concerned trial Court forthwith.