JUDGMENT : Maheshwari, J. 1. Both these appeals have been filed by accused appellants ram pal and doulat, assailing the judgment dated 28.8.1991 passed by Special Court (Sati Nivaran) & Addl. Sessions Judge, Jaipur City, Jaipur in Sessions Case No. 18/90 convicting them for the offence punishable under Section 376(2)(g) IPC and awarding both of them sentence for rigorous imprisonment for a period of ten years and imposing a fine of Rs. 100/- and additionally awarding rigorous imprisonment for one month in default of payment thereof. 2. Since both the appeals have arisen out of the same judgment, therefore, the same are being decided by this common judgment. 3. Briefly stated the facts giving rise to the appeals are that an FIR was lodged by one Bhanwar Singh at Police Station Shastri Nagar, Jaipur on 10.10.1988, alleging that when he came back home after his work at about 11 p.m. in the night on 9.10.1988, his wife Rukma told him that when she was sleeping in her home, at about 9.30 p.m., Doulat came there and forcibly took her to her other house, which was lying vacant. He pulled her down on the floor and with the intention to commit rape entered his part of the body in her body. She tried to push her away. Thereafter, Rampal also came there and told her to do the same with him when she denied, Doulat while showing her knife forced her for the same, then Rampal also forcibly did the same. She could not make any hue and cry out of fear. When she came out, Bhagirath Singh saw them and shouted. Both these persons ran away and many other persons from the neigh-bor-hood gathered there. Bhanwar Singh also mentioned that when he tried to come to police station to lodge the report, the neighbors withheld him. After holding a meeting, they told him to file the FIR. 4. On this written report, FIR for the offence punishable under Section 376 IPC was registered. Prosecutrix Rukma was also accompanying Bhanwar Singh. While getting the FIR registered, she was examined and no injury was found on her body. 5. After investigation, charge-sheet was filed against both the accused appellants for the offence punishable under Section 376 IPC. 6. After hearing both the sides, charge was framed against both the accused appellant for the offence punishable under Section 376 IPC. 7. While getting the FIR registered, she was examined and no injury was found on her body. 5. After investigation, charge-sheet was filed against both the accused appellants for the offence punishable under Section 376 IPC. 6. After hearing both the sides, charge was framed against both the accused appellant for the offence punishable under Section 376 IPC. 7. During trial, prosecution got eight witnesses examined and documentary evidence was also produced in support of the charge. Both the accused appellants were got examined under Section 313 Cr.P.C. No defence witness was produced. After hearing the arguments, learned trial Court proceeded to convict the accused appellants and awarded them sentence as mentioned above. 8. During arguments learned amicus curiae appearing on behalf of both the accused appellants has contended that FIR was not lodged just after the incident and it was lodged after deliberations and taking legal advice, thus, it smells of concoction. He has further argued that despite important witnesses have turned hostile and nothing has come against the accused appellants, learned trial Court has convicted both the accused appellants without appreciating the evidence properly. While lodging the FIR, no injury was found on the body of prosecutrix. Ex. P/15 has been produced, which is medical examination report of Smt. Rukma. In the column in respect of injuries on the genitals of Rukma, it has been mentioned "Nil". It cannot be believed that two too persons commit rape with prosecutrix even then no injuries are found on her genitals This also makes the prosecution story unbelievable. 9. No FSL report has been produced by the prosecution with regard to vaginal swab. He has argued that even on the perusal of FIR, it clearly comes out that whatever incident has taken place was a consented one. The evidence brought on record by the prosecution also confirms the same inference. He has also contended that charge was framed against the accused appellants only for the offence punishable under Section 376 IPC simpliciter but learned trial Court has convicted them for a graver offence under Section to 376 (2)(g) IPC. Further, the accused appellants were not even examined under Section 313 Cr.P.C. in respect of this graver offence, so they could not have been punished for the offence under Section 376(2)(g) IPC. Further, the accused appellants were not even examined under Section 313 Cr.P.C. in respect of this graver offence, so they could not have been punished for the offence under Section 376(2)(g) IPC. Thus, he has prayed that both the accused appellants are liable to be acquitted of the charge and the judgment of conviction and sentence passed against them by 15 learned trial Court is liable to be set aside. 10. Learned Public Prosecutor has vehemently opposed the prayer and argued that sufficient evidence has come on record against the accused appellants. FIR has been lodged just on the next date of the offence and delay, therefore, is not fatal to the prosecution. Both the accused appellants have jointly raped the prosecutrix, so learned trial Court has rightly convicted both the accused appellants for the offence under Section 376(2)(g) IPC. He submitted that the judgment passed by learned trial Court is liable to be upheld. 11. In view of the arguments advanced by rival sides, the evidence available on record considered and critically examined. 12. The most important witness in this case is the prosecutrix PW.5 Mst. Rukma. She has narrated that Doulat came into her house when she was asleep and he pulled thumb of her leg, she became conscious and set on the cot, then Doulat got her up from the cot holding her hand and started scuffling with her. She has narrated that she prayed with folded hands but he took her to other room and told that ^^esjs lkFk dke djuk iMsxkA** On her denial, he showed her knife and pulled her down on the floor, pulled up her 'petikot' and started committing rape. Thereafter, when he withdrew, Rampal came in, who was standing out along with the wall and insisted for the same act as that of Daulat. On her denial, Doulat again showed her knife and Rampal committed the same act with her. They went away threatening her to keep silent. When she shouted, Bhagirath came there and other persons of the neighbour-hood also gathered. 13. During arguments, learned amicus curiae has contended that this description clearly shows that it was not a forcible act and against the will or without the consent of prosecutrix. Had it been - forcibly performed, prosecutrix would have immediately made hue and cry, since when Doulal pulled thumb of her leg. 13. During arguments, learned amicus curiae has contended that this description clearly shows that it was not a forcible act and against the will or without the consent of prosecutrix. Had it been - forcibly performed, prosecutrix would have immediately made hue and cry, since when Doulal pulled thumb of her leg. All this narration shows as if the accused persons requested the prosecutrix for the sexual intercourse and then performed it with her. Had she not been the consenting party, she would have not 45 cooperated with them. 14. Though the narration, which has come out in the examination in chief of prosecutrix does not unequivocally show her consent but on perusal of her cross-examination, things become more clear. She has admitted that the occurrence took place near Deepawali and she was sleeping while putting on blanket. It indicates that the weather was cold but she has admitted that when Doulat came to her house, doors were not closed but were open. The time of incident has been mentioned as 9.30 p.m., it cannot be reasonably expected that a lady sleeping with her two and half year old child in the winter season would keep the doors open. Moreover, she has admitted that when Doulat held him on her leg while putting off her blanket, she kept sleeping presuming that it is her husband. It is beyond imagination that the lady will not differentiate between the touch of her husband and some other person. She has also admitted that Doulat and Rampal did not give any beating to her; neither she created any resistance by injuring them. She has also admitted that she did not get any injury during the incident though the act of rape was committed by pulling her down on the floor. She has also admitted that neither they tied her up nor closed her month by putting any cloth therein. She has also stated that when Doulat and Rampal came out of the house, Bhagirath saw them. When she came out of the house, then only she cried. All this conduct, which has been admitted by her clearly indicates that she did not create any resistance while being ravished. Neither she got any injury on her body nor she caused any injuries on the body of the accused persons. When she came out of the house, then only she cried. All this conduct, which has been admitted by her clearly indicates that she did not create any resistance while being ravished. Neither she got any injury on her body nor she caused any injuries on the body of the accused persons. She did not shout also and as per her own admission, she shouted only when Bhagirath saw accused persons coming out. This narration of incident creates a reasonable impression that the prosecutrix was a consenting party to the act committed by the accused persons. 15. Next star witness of the prosecution is Bhagirath PW.7, who happens to see the accused persons coming out of the house of the prosecutrix. His name is also mentioned in the FIR but Bhagirath PW.7 has completely denied to have seen any incident or to have heard any noise. He has stated that no woman told him about anything. It is also strange that after being declared hostile by the Public Prosecutor, he has not been cross-examined by him to elicit the truth, so his statements are liable to be considered as it is wherein he does not support the prosecution story. 16. Another important witness is husband of prosecutrix PW. 6 Bhanwar Lal. He says that when he came back from 'halwai's shop where he works, the neighbours told him that two persons entered into his house. His wife told about Doulat & Rampal, who have committed rape with her. He says in the cross examination that his wife told about the incident in the night itself. Thereafter, he had his meals and went to sleep. He has also said that he had a good sleep. It is strange to note that after having come to know about the rape being committed with his wife, he did not go to the police station to file FIR immediately, on the contrary, he had a good sleep. PW.6 Bhanwar Lal has mentioned that no person was caught from the site whereas PW. 5 Rukma told that the neighbours caught hold of Rampal. Thus, there is contradiction on this point between the husband and wife. 17. PW.5 Rukma and PW. PW.6 Bhanwar Lal has mentioned that no person was caught from the site whereas PW. 5 Rukma told that the neighbours caught hold of Rampal. Thus, there is contradiction on this point between the husband and wife. 17. PW.5 Rukma and PW. 6 Bhanwar Lal have admitted that the police seized the 'petikot', which Rukma was wearing at the time of alleged incident but learned amicus curiae appearing on behalf of the accused appellants has vehemently argued that no FSL report has been produced by the prosecution regarding the stains of semen, which was bound to be found on such 'petikot'. He has also argued that PW.8 Ummed Singh, Investigating Officer has stated that Uungi' and 'chaddi' were seized through Ex. P/8 and P/9 respectively from accused Doulat and Rampal, which they were wearing at the time of incident but no FSL report in respect of these two articles has been produced where upon the semen stains were likely to be found. It is also worth mentioning that no doctor has been examined to prove the medical examination report. The contention of learned amicus curiae appears to be logical and is worth acceptance that in the absence of these FSL reports, an adverse inference is required to be drawn against the prosecution case under Section 114 of Evidence Act. 18. It has been alleged in the prosecution story that accused Doulat committed rape upon Rukma by showing her knife and also forced her for the same offence with Rampal, which has been committed by Doulat on showing knife but such knife has not been produced during the evidence whereas PW.8 Ummed Singh has stated that knife was seized through Ex.P/8 from Doulat. 19-20. Learned amicus curiae has also argued that the learned trial Court has convicted the accused persons for the offence punishable under Section 20 376(2)(g) I.P.C., which was related to gang rape at the relevant time of incident prior to Criminal Law Amendment Act, 2013. As per the prevalent provisions, offence punishable under Section 376 (2)(g) IPC was punishable with rigourous imprisonment for not less than 10 years but it may be for life whereas offence punishable under Section 376 IPC was punishable for a terra which shall not be less than 7 years but it may be for life, so there was a difference of gravity in the nature of these two offences. In view of above, learned counsel further argued that the charge framed against the accused appellants was for the offence punishable under Section 376 IPC simpliciter, which reads as under:- ^^fd vki yksxksa us fnukad 09-11-1988 dh jkf= ds 9-30 cts ;k mlds yxHkx vfHk;ksxh Hkaojflag ds fjgk;'kh edku okds dPph cLrh] ukgjh dk ukdk] 'kkL=h uxj] t;iqj esa vukf/kd`r izos'k dj vfHk;ksxh dh iRuh eq0 :dek ds lkFk tcjnLrh pkdw dk Hk; fn[kkdj laHkksx dj cquk dk;Z fd;kA bl izdkj vki yksxksa us /kkjk 376 Hkk0na0la0 ds vkjksi esa naMuh; vijk/k fd;kA** 10. As per the above charge, there was no mention of the gang rape and therefore, he submitted that the conviction held by learned trial Court for the offence under Section 376(2)(g) IPC is not liable to be maintained. It is further submitted that no such allegation was explained to the accused appellants while examining them under Section 313 Cr.P.C. 21. The contention raised by learned amicus curiae appears to be sound It is established principle of criminal jurisprudence that unless the accused is clearly explained of the allegations which he has to defend, he cannot be held liable for the same or for any graver offence for which more punishment can be imposed upon him. 22. In this respect, following judgments passed by Hon'ble Apex Court are also worth taking into consideration:- Hon'ble Supreme Court while passing judgment in case of Shaikh Maqsood v. State of Maharashtra, reported in 2009 AIR SCW 4308 has held that accused is liable to be acquitted when no question is put to him as regard the circumstances appearing against him. 23. Similar view has been expressed by Hon'ble Supreme Court in case of Ajay Singh v. State of Maharashtra, reported in AIR 2007 SC 2188 . 24. Hon'ble Supreme Court has expressed the similar view in case of Nirmal Pasi & Anr. v. State of Bihar, reported in JT 2002(6) SC 28 in which it has been held that piece of incriminating evidence relied on by the prosecution must be put to the accused in his statement under Section 313 Cr.P.C., enabling him to offer such explanation as he may choose to do. 25. While going though the impugned judgment, it appears that the learned trial Court has not taking these aspects into consideration while convicting the accused for the offence punishable under Section 376(2)(g) : IPC. 25. While going though the impugned judgment, it appears that the learned trial Court has not taking these aspects into consideration while convicting the accused for the offence punishable under Section 376(2)(g) : IPC. On this count also, the judgment of learned trial Court is found to be unjustified and liable to be set aside. 26. Taking all these facts into consideration wherein the prosecution has completely failed to collect and produce convincing evidence against the accused appellants, it appears that the judgment passed by learned trial Court convicting the accused appellants suffers from serious infirmities and is not supported by the sufficient and cogent evidence. Moreover, the statements of prosecutrix does not inspire confidence that the sexual inter-course, if any, was committed by the accused appellants against her will or without her consent. 27. In view of above discussions, the conviction order passed by learned trial Court, as also the sentence awarded by it to the accused appellant for offence punishable under Section 376(2)(g) IPC cannot be sustained. Consequently, both the appeals are allowed and conviction order for offence under Section 376(2)(g) IPC and the sentence awarded to the accused appellants are quashed and set aside. Both the accused appellants are acquitted of offence under Section 376(2)(g) IPC. Both the accused appellants are on bail. Their bail bonds stand discharged.