JUDGMENT : Sudhanshu Dhulia, J. Both these appeals are against a common judgment and order dated 25/26.09.2013 passed by the 1st Additional Sessions Judge/Special Judge S.C. S.T. Act, Dehradun in Special Sessions Trial No. 38 of 2008 convicting Pramod Gupta and Ashok Kumar and acquitting the third accused Pravin Kumar. The accused Pramod Gupta and Ashok Kumar, who are appellant in Criminal Appeal No. 447 of 2013 and Criminal Appeal No. 427 of 2013, respectively have been convicted and sentenced as under: Accused Pramod Gupta has been convicted under Section 376 (2) (g) and Section 366 IPC and has been sentenced for life imprisonment with a fine of Rs. 50,000/- under Section 376 (2) (g) IPC and rigorous imprisonment for a period of seven years with a fine of Rs. 5,000/- under Section 366 IPC. Accused Pramod Gupta has also been convicted under Section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and has been sentenced for life imprisonment with a fine of Rs. 10,000/-. The accused Ashok Kumar has been convicted under Sections 120-B, 354, 366 IPC and has been sentenced for rigorous imprisonment for a period of ten years with a fine of Rs. 2,000/- under Section 120-B of IPC, rigorous imprisonment for a period of two years under Section 354 IPC and rigorous imprisonment for a period of seven years with a fine of Rs. 2,000/- under Section 366 IPC. 2. On 19.04.2008, the prosecutrix, who was undergoing her graduation course was taken by the accused Ashok Kumar to a place called “Saharanpur Chowk” in Dehradun and then was asked by Ashok Kumar to accompany the second accused Pramod Gupta, to a hotel. The case of the prosecution is that prosecutrix was enticed by Ashok Kumar, as he assured her that Pramod Gupta (who is the co-accused), would get her a Government job in the Secretariat at Dehradun. She was asked to accompany Pramod Gupta to a hotel, as her job interview was to be conducted there. On this assurance, prosecutrix went with Pramod Gupta to the hotel, where on her request she was given a glass of water, which was allegedly spiked and caused dizziness to the prosecutrix. Pramod Gupta then took her to a room of the hotel, where she was raped by him. On this assurance, prosecutrix went with Pramod Gupta to the hotel, where on her request she was given a glass of water, which was allegedly spiked and caused dizziness to the prosecutrix. Pramod Gupta then took her to a room of the hotel, where she was raped by him. Later he took her nude photographs and soon thereafter three more persons arrived in the room of the hotel, who also raped the prosecutrix. 3. The prosecutrix was then dropped by Pramod Gupta at “Saharanpur Chowk”, where Ashok Kumar was waiting for her in his vehicle. She was then taken to an isolated place by Ashok Kumar, where Ashok Kumar subjected her to unnatural sex by inserting a glass bottle inside her vagina. Here it must be stated that Ashok Kumar is a physically challenged person. He has a locomotor disability of both legs, and the vehicle he drives (of which a reference has come at some places), is also a specially designed vehicle for the disabled. 4. After this incident, the prosecutrix went to her house where she was completely traumatized. She feared both Ashok Kumar, as well as Pramod Gupta, for reasons that Pramod Gupta had taken her photographs and she was being blackmailed, on the strength of the photographs. 5. It was after the incident that Ashok Kumar admitted her in an institute, to undergo a course, which was being conducted by an NGO called “Samadhan”, and it was during undergoing this course, that the prosecutrix revealed her story to her roommate called Shruti Sinha. Shruti Sinha in turn communicated this to the incharge of the NGO i.e. Ms. Renu D. Singh (PW 3). Thereafter the in-charge of the N.G.O., namely, Ms. Renu D. Singh assured the prosecutrix that she must bring the culprits to justice and lodge a first information report against them, so that justice be done. Having gained in confidence, the prosecutrix lodged the first information report at Police Station Rajpur, District Dehradun on 19.06.2008 at 09:30 p.m. The FIR was lodged against Ashok Kumar and four other unknown persons, as till this time, even the identity of Pramod Gupta was not known. Pravin Kumar, another accused who faced the trial is the Manager of the Hotel (Rajpur Resort). Pravin Kumar, another accused who faced the trial is the Manager of the Hotel (Rajpur Resort). He is not named in the FIR, but his name figured during the investigation, and was charged under Section 328, 120-B of IPC and Section 3 (2) (vi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989. All the same, he has been acquitted by the trial court. 6. Accused Ashok Kumar was arrested on 20.06.2008 and second accused Pramod Gupta was arrested on 21.06.2008, pursuant to the FIR. 7. Under the provisions given under Section 164A CrPC, the medical examination of the victim was conducted on 19.06.2008 at 10:45 p.m. at Doon Women Hospital. Medical report of the prosecutrix shows the position of her teeth as 7 + 7/ 7 + 8, height 5 ft. 2 inches, breasts developed, wt. 42 kg., Axillary and pubic hair present, no marks of injury on external or private parts. Vagina admits 2 fingers, hymen torn, vaginal smear slide made and sent for histopathological examination. Urine pregnancy test to be done, for age X-ray, wrist, elbow, knee joint, opinion after reports. 8. The report of the bone ossification test shows that she was more than 18 years of age. As regarding rape, the report says “no definite opinion of rape can be given”. 9. We must though not loose sight of the fact that this medical examination was done after two months of the alleged incident. 10. The next day i.e. on 20.06.2008, the statements of the prosecutrix were recorded under Section 164 of CrPC. In her statement under Section 164 CrPC, the age of girl recorded is 22 years. She states that the accused Ashok Kumar is her distant cousin. He promised to get her a Government job in the Government Secretariat at Dehradun. Ashok Kumar then lured her in accompanying Pramod Gupta to a hotel on that fateful day. Her father first took her to the house of the accused Ashok Kumar in the morning of 19.04.2008, where Ashok Kumar assured his father that he will take good care of his daughter. At about 02:00 p.m. in the afternoon, the accused took her on his scooter (The accused being physically challenged person used to drive a scooter, which is made for physically challenged person) to Saharanpur Chowk. He parked his scooter near a white Ambassador car. At about 02:00 p.m. in the afternoon, the accused took her on his scooter (The accused being physically challenged person used to drive a scooter, which is made for physically challenged person) to Saharanpur Chowk. He parked his scooter near a white Ambassador car. On the back seat of the car, was sitting a fair complexioned man of average built, who was wearing a cream colour safari suit. On wheels was the driver of the car. Ashok Kumar then introduced the person wearing the safari suit as a high ranking Government official, who will take her interview. This person who was sitting inside the car addressed her as “beti” and took out a form which she was asked to fill. He also asked her to attach her passport size photograph with the form. When she inquired whether the interview will be held at the Secretariat, she was told that the interview would be held in a hotel. Ashok Kumar finally left the two i.e. the prosecutrix and accused Pramod Gupta, and the two proceeded towards the hotel, called Rajpur Resort at Rajpur Road, Dehradun. The two went inside the hotel, where she was asked for some time to sit in the lobby. The prosecutrix then says that she was feeling uneasy in the hotel and asked for a glass of water. She was given a glass of water and after consuming the water, she had a feeling of dizziness. She was told that interview will be held on first floor of the hotel, where she was escorted by Pramod Gupta. As soon as the two entered the room of the hotel she was pushed to the bed, and the door was then bolted from inside. Pramod Gupta then took out a handkerchief from his pocket with which she was gagged. Next, both her hands were tied by her “Dupatta”. She was hence in no condition to resist. Meanwhile, she was also not completely in her senses due to the liquid which she had consumed. She was raped thrice by the accused. She was worried and totally scared. Meanwhile, during the rape, the accused Pramod Gupta continued taking her nude photographs, which were shown to her after the rape. She was threatened that if she speaks about this to anyone then these photographs would be made public. She was raped thrice by the accused. She was worried and totally scared. Meanwhile, during the rape, the accused Pramod Gupta continued taking her nude photographs, which were shown to her after the rape. She was threatened that if she speaks about this to anyone then these photographs would be made public. She then received a call from Ashok Kumar, who said that he is sending three more persons to the hotel who would do the same thing with her what has just been done to her, as she has now become a prostitute. Soon thereafter three persons came, of whom one was drunk. Each one of them raped her in turn. She was in no condition to resist. 11. She also states that after her rape she was bleeding and had an acute pain in her stomach. The person who brought her first to the hotel was scolding Ashok Kumar on phone, who was on the other side. Pramod Gupta was complaining that the girl (i.e. the prosecutrix) was weak and fragile. They were also bargaining about the money to be paid to Ashok Kumar. The four then left the room. Before leaving the room, they had asked the prosecutrix to take bath, which she did. She was also given toilet papers as she was bleeding. She was threatened that if she raises any alarm or shouts, her video film and photographs, will become public. She managed to reach the ground floor of the hotel, and then the car, which was opened by the driver. She sat in the car, with the person who had brought her first to the hotel. She was then dropped at “Saharanpur Chowk”. 12. At “Saharanpur Chowk”, Ashok Kumar was waiting for her. Ashok Kumar took her in his vehicle to an isolated and deserted place where she was asked by Ashok Kumar to take off her clothes. She obeyed the orders as she was again threatened that the movie which was recorded would be shown to her father, if she does not obey. She was asked then to lie on the floor and then a glass bottle was inserted in her vagina. Prior to this, the accused Ashok Kumar also inserted his fingers inside her vagina. She then narrates as to how Ashok Kumar ravished her and derived at a sadistic pleasure out of it. Finally she was dropped at her house. 13. She was asked then to lie on the floor and then a glass bottle was inserted in her vagina. Prior to this, the accused Ashok Kumar also inserted his fingers inside her vagina. She then narrates as to how Ashok Kumar ravished her and derived at a sadistic pleasure out of it. Finally she was dropped at her house. 13. She admits that she did not narrate this incident to anyone immediately, as she was afraid that her photographs have been taken and under that threat remained quiet. She also remained unwell for 15 days and most of the time she had a high fever and was continuously bleeding and had a stomach pain. Ashok Kumar meanwhile continued to blackmail her. 14. She then states that on 11.06.2008 she was dropped at the NGO called “Samadhan” for her coaching and she was also instructed that she must take leave from the institute in order to meet him. She also states that Rs. 5,000/- which was earned was also taken away by Ashok Kumar. A draft of Rs. 3,500/- was prepared and was given to NGO. In the NGO office she saw the women helpline phone number, where then an idea came to her mind, that this is a place where she could get some help. Then on 13.06.2008 again Ashok Kumar called her and asked her to come out of the NGO, but out of fear, she did not leave the NGO. There in the NGO she befriended a girl called Shruti Sinha who was from Delhi. She disclosed her story to Shruti Sinha, who advised her that she should state the entire facts to “Big Mam” (PW3 Renu D. Singh). On 15.06.2008 she asked her father to bring her clothes to the NGO. Till that time she could not gather enough courage to lodge a formal FIR against Ashok Kumar. All the same, when on 16.06.2008, Ashok Kumar called her again and asked her to come out of the NGO. She did not oblige as she was completely nervous. When on 18.06.2008 Ashok Kumar finally threatened to kill her, she reported the matter to the police on 18.06.2008, and the FIR was formally registered on 19.06.2008. 15. All the same, when on 16.06.2008, Ashok Kumar called her again and asked her to come out of the NGO. She did not oblige as she was completely nervous. When on 18.06.2008 Ashok Kumar finally threatened to kill her, she reported the matter to the police on 18.06.2008, and the FIR was formally registered on 19.06.2008. 15. As we have already stated above, subsequent to the lodging of the FIR and recording of the statements of the prosecutrix under Section 164 CrPC, the two accused, namely, Ashok Kumar and Pramod Gupta were arrested on 20.06.2008 and 21.06.2008, respectively. The third accused Pravin Kumar was arrested on 25.06.2008. The test identification parade was done on 28.06.2008 where she duly identified the accused Pramod Gupta as one who had taken her in his Ambassador car to Rajpur Resort where she was gang raped, inter alia by three other persons. The remaining three persons who had raped her could never be identified. Trial has actually proceeded against Pramod Gupta, Ashok Kumar and Pravin Kumar. 16. The police after completing its investigation had filed a chargesheet on 24.07.2008. Since the charges were also framed under Section 3(2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the trial proceeded before the Special Judge, SC/ST Act. 17. The prosecution in order to prove its case had examined as many as 16 witnesses. 18. After the prosecution witnesses were examined, statements of accused persons were also recorded under Section 313 CrPC. 19. There are two defence witnesses as well, which are Sacchidanand Dobhal DW 1 and Sumer Chandra Parley DW 2, who were also examined. 20. At this stage, we may also note that the prosecution witness PW 14 is the driver of the white Ambassador car, who had taken the prosecutrix to hotel from “Saharanpur Chowk” to Rajpur Resort on 19.04.2008, where she was allegedly raped. Prior to the trial, his statements were also recorded under Section 164 CrPC. 21. In his statement under Section 164 CrPC, he admits that he is the driver of Pramod Gupta and drives his Ambassador Car UA No. 07-S- 0007. On 19.04.2008, they at about 02:00 – 02:30 pm, they had met appellant Ashok Kumar at “Saharanpur Chowk”, who was on his special vehicle. With Ashok Kumar was a girl, who walked into his car later. The girl was about 21– 22 years of age. On 19.04.2008, they at about 02:00 – 02:30 pm, they had met appellant Ashok Kumar at “Saharanpur Chowk”, who was on his special vehicle. With Ashok Kumar was a girl, who walked into his car later. The girl was about 21– 22 years of age. He was instructed by Pramod Gupta to drop them at Rajpur Resort Hotel. While the car was being driven towards the hotel, Pramod Gupta was having a conversation on his mobile phone with someone. Once they reached the hotel, both Pramod Gupta and the girl came out of the vehicle and went inside the hotel. He then states that there was a waiter there called Rakesh who served soup to the two i.e. Pramod Gupta and the girl and a bowl of soup was also given to him in his vehicle. He further states that in the hotel, there was a “Safai Karmchari” called Sunil, who was a resident of Almora, whom he befriended during the time he was waiting for Pramod Gupta. After about one and a half hours, Pramod Gupta and the girl came out. From the hotel they went straight to “Saharanpur Chowk”, where the girl was dropped. Thereafter they went to their house. 22. This witness has subsequently turned hostile. We will come to this in a while. 23. The prosecutrix was examined as PW 1 on 16.12.2009. She states that the incident is of 19.04.2008. His brother named Ashok Kumar (whom she recognises in the courtroom and curses), is physically handicapped, has betrayed her trust. He had assured that he would get her a Government job in the Secretariat, but instead got her into all this. She then states that she belongs to scheduled caste and was assured a job by the accused, for which interview was to be held in a hotel, named Rajpur Resort in Dehradun. Then in her examination in chief she narrates almost the same story which she had already narrated in detail in her statement under Section 164 CrPC, as to how she was taken to hotel and how she was served with a glass of water, which was spiked and then gang raped, and subsequently how Ashok Kumar took her to a lonely place where she was also subjected to unnatural sex. She then states that her mother is dead and his father has a second wife. She then states that her mother is dead and his father has a second wife. Ashok Kumar continued to blackmail her after the incident and having fed up with continuous harassment, she finally took a decision to lodge an FIR. She kept quiet for two months as she was being blackmailed and was under a threat. Ashok’s wife, and mother, and family members also tried to force her into prostitution. She then says that for this purpose Ashok had hatched a plan to admit her in a course in the institute run by an NGO, as it would be easy to take her out from there and she would easily work as a sex worker. On 11.06.2008, Ashok somehow convinced her father and she was admitted in the management school run by the NGO, for a seven days’ course. When she took admission in this management course, she realized that there is a Women Helpline available in the Institute. Then she narrates how she met Shruti Sinha and PW 4 Sanjeev Sarkar, the person in-charge of the course, and how the FIR was ultimately lodged. The reason why she kept silent for two months is the photographs, clips and the movie which were recorded by the accused in his mobile phone and the threat that these would be made public. The prosecutrix was then cross-examined. She replies as to how many brothers and sisters she has. That her mother has passed away and after the death of her mother, her father remarried. Her step mother had five children from her earlier marriage, etc. Accused Ashok Kumar being a distant family cousin is known to her family and he used to frequently visit their house. It is the accused Ashok Kumar who had sent her on a path of prostitution, being a pimp himself. She was cross-examined in detail by the defence counsels but she sticks to her story as to how she was taken on the fateful day to “Saharanpur Chowk” by Ashok Kumar and thereafter by another accused Pramod Gupta in his car to a hotel named Rajpur Resort, where she was gang raped, etc. She also narrates as to how she was subjected to unnatural sex and was subjected to a continuous blackmailing at the hands of Ashok Kumar. 24. She also narrates as to how she was subjected to unnatural sex and was subjected to a continuous blackmailing at the hands of Ashok Kumar. 24. PW2 Mahipal Singh is the father of the prosecutrix who worked as Class IV employee in Cantonment Board at Dehradun and supports the prosecution story to the extent that his daughter was assured by Ashok Kumar a Government job in the Secretariat. He further states that his daughter reached the house at 06.00 pm on that fateful day. She appeared tired and even troubled and her condition was not normal. Meanwhile, he had a talk with Ashok Kumar who had assured that the prosecutrix would be admitted in NGO and she would be getting the Government job very soon. 25. PW3 Renu D. Singh is the In-charge of an NGO called “Samadhan” where the prosecutrix was undergoing training for seven days and where she befriended Shruti Sinha, to whom she confided. PW3 states that she runs an NGO called “samadhan” which gives legal help, particularly to “dalit” women. She further states that on 11.06.2008, the prosecutrix had taken admission in her NGO. She was dropped in the Institute by one Ashok Kumar. At that time, she was not knowing anything about Ashok Kumar. Later she was informed that he is the cousin of the prosecutrix. The roommate of the prosecutrix, namely, Shruti Sinha informed her on 13.06.2008 that her roommate (i.e. the prosecutrix) is actually a rape victim, who keeps crying the whole night. She was then informed about the rape and torture she was subjected to. She was also told that she is in constant fear and threat at the hands of her perpetrators. She immediately confronted the prosecutrix on this, who quickly broke down and narrated her entire story to her. This witness (PW3) then narrates the family background of the prosecutrix and the condition in which she was living, such as the death of her mother, the presence of a step-mother, etc. 26. After hearing the story of the prosecutrix, this witness informed the prosecutrix that a major offence has been committed. She must now take the help of the police in this matter. On 17.06.2008, the 7 day course had come to an end and she went back to her house on 18.06.2008. She said that Ashok Kumar continues to harass and blackmail her. She must now take the help of the police in this matter. On 17.06.2008, the 7 day course had come to an end and she went back to her house on 18.06.2008. She said that Ashok Kumar continues to harass and blackmail her. The volunteers of the NGO took prosecutrix to police station and from there to the Director General of Police for getting permission, and thereafter a report was formally lodged. This witness is an important witness to the extent that as per the prosecution, it was only on the intervention of this witness that the prosecutrix ultimately gained courage to formally lodge an FIR against the offenders. 27. PW4 Sanjeev Sarkar is the husband of PW3 and is the witness to the FIR which was ultimately lodged at Women Helpline on narration of the prosecturix. 28. PW 5 is Dr. Shikha Jangpangi, who had medically examined the prosecutrix on 19.06.2008. The medical report has already been referred above. She states that the age of the prosecutrix was more than 18 years and she was not pregnant at the relevant time, and no injuries either external or internal were found on her body. In her cross-examination, she admits that if a glass bottle is inserted in a vagina of a girl forcibly, it is bound to result in grievous hurt and can result in serious medical condition. As to how long the injury would take to heal depends upon from person to person, she states. 29. PW14 Raj Kumar is the driver of accused Pramod Gupta. His statement given under Section 164 CrPC has already been referred above. He was examined as PW14 and in his examination-in-chief done on 02.07.2013, he admits that he is the driver of Pramod Gupta and used to drive his Ambassador Car bearing No. UA 07/0007 and that he was employed as a driver on a monthly salary of Rs. 2,500/-. This witness then narrates an entirely different story, i.e. different to what stated by her in her statement under Section 164 CrPC. He admits that on the fateful day, he was driving the vehicle and he had driven the vehicle from “Saharanpur Chowk” where a girl tried to stop their car. He asked the owner whether he should stop the car, and on approval the car was stopped. The girl had some conversation with Pramod Gupta. He admits that on the fateful day, he was driving the vehicle and he had driven the vehicle from “Saharanpur Chowk” where a girl tried to stop their car. He asked the owner whether he should stop the car, and on approval the car was stopped. The girl had some conversation with Pramod Gupta. He overheard the girl saying that she will meet him at Rajpur Road near the polling booth. Thereafter they went to Party Office at Patel Nagar, Khurbura and then to Rajpur polling booth where they met the girl, who came inside the car and thereafter the two i.e. Pramod Gupta and the girl went to a restaurant. Later Half an hour later, they came out of the restaurant. Later the girl said that she should be dropped at “Jakhan”. Meanwhile, she received a call on her mobile phone. At this stage, this witness was declared hostile. 30. Nevertheless the fact remains that this witness PW 14 has admitted the fact that the girl had actually met Pramod Gupta at “Saharanpur Chowk” on the fateful day, though he has later changed the story as a result of which he has been declared hostile. 31. The remaining witnesses are formal witnesses. 32. On the strength of these evidences, the learned trial court has come to the conclusion that accused Pramod Gupta has committed offence under Sections 376 (2) (g) and 366 IPC as well Section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and accused Ashok Kumar has committed offence under Sections 120-B, 354 and 366 IPC and therefore convicted and sentenced accused Pramod Gupta and Ashok Kumar, as already stated above. 33. Since nothing worthwhile has come against the third accused, namely, Pravin Kumar who was the manager of the hotel, he has been acquitted by the trial court. There is no appeal against his acquittal. 34. Mr. Nagendra Rai, learned Senior Counsel for the accused Pramod Gupta would argue that apart from the statement of the prosecutrix, there is nothing with the prosecution, and on the strength of her evidence alone, conviction should not have been made. He also pointed out to the delay in the FIR, which has been lodged after two months of alleged incident, and the fact that medical evidence not corroborated the alleged offence. 35. He also pointed out to the delay in the FIR, which has been lodged after two months of alleged incident, and the fact that medical evidence not corroborated the alleged offence. 35. The only reason assigned by the prosecutrix for keeping quiet for two months and for lodging an FIR after a delay of two months is that she was under continuous threat and that she was being blackmailed at the hands of Ashok Kumar because of the photographs and the movie clips taken by Pramod Gupta, which were also with Ashok Kumar. However, for this the prosecution has not placed any evidence before the court. It is clear from the records that two mobile phones were taken into custody presumably of Ashok Kumar and Pramod Gupta and thereafter sent for forensic examination at the Laboratory at Hyderabad. But no forensic report has been placed by the prosecution and the learned counsel for the State has apprised this Court that from the case diary it is clear that the report could not be called as in one mobile the code could not be opened and this mobile was more or less useless for the lab. As to the second one, no photographs were found and even if it had photographs earlier, they were deleted and could not be retrieved. 36. The prosecution has also sought (by permission of the trial court), the lie detector test. Though Ashok Kumar refused to give lie detector test, but it was performed on Pramod Gupta. Question nos. 1 to 3 were relating to photographs being taken of the prosecutrix as alleged by the prosecution and of blackmailing, to which the accused Pramod Gupta denies and this as per the test truthful. The remaining questions which were regarding bringing the prosecutrix to the hotel, rape, etc. have already been denied but the lie detector test leaves a question mark on these statements. 37. The fact remains that no worthwhile evidence was placed before the court apart from the version of the prosecutrix, to which we will come in a while. The medical examination of the prosecutrix which was done on 19.06.2008 also does not support the case of rape. The other evidences which were collected by the prosecution from the car of accused Pramod Gupta, the bedsheets and other relevant material, recovered from the hotel were sent for forensic examination. The medical examination of the prosecutrix which was done on 19.06.2008 also does not support the case of rape. The other evidences which were collected by the prosecution from the car of accused Pramod Gupta, the bedsheets and other relevant material, recovered from the hotel were sent for forensic examination. The forensic examination also does not support the case of the prosecution in any manner, except that semen was detected in the bedsheet of the hotel. The bedsheet itself was recovered after two months, that too in a hotel and the semen itself is not connected to any of the accused. 38. We would deal with the case of accused Pramod Gupta first i.e. the appellant in Criminal Appeal No. 447 of 2013. There is absolutely no doubt in our mind that on the fateful day i.e. on 19.04.2008, the prosecutrix was taken by the accused in his Ambassador Car to a hotel/resort at Rajpur Road and thereafter the two went to hotel room and remained there for one and a half hour in the room. The reason being that apart from the version of the prosecutrix, this fact is also supported from the statement of the driver PW 14, which he had earlier given under Section 164 CrPC, though he later turned hostile, yet even in the court he has given a statement that Pramod Gupta was with a girl that day though instead of a hotel they went to a restaurant. Apart from this the fact remains that Pramod Gupta has also been identified by the prosecutrix in the identification parade. Although discrepancies have been pointed out on identification parade but we do not agree on that with the defence. 39. It is the accused Pramod Gupta who had taken the prosecutrix to the hotel on the fateful day, and this fact is also established by the statement of PW16 C.O. Ajay Singh, who is the Investigating Officer, who had also submitted the call details of mobile of Pramod Gupta which show his presence in the same area where the crime was allegedly committed on the fateful day. 40. Yet the question still remains, whether rape has been committed? 41. The alleged offence was committed on 19.04.2008. On the said date, the definition of “rape” as it stood in IPC, on the relevant date reads as under:- “375. Rape. 40. Yet the question still remains, whether rape has been committed? 41. The alleged offence was committed on 19.04.2008. On the said date, the definition of “rape” as it stood in IPC, on the relevant date reads as under:- “375. Rape. – A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: - First. – Against her will. Secondly. – Without her consent. Thirdly. – With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly. – with her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly. – With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly. – With or without her consent, when she is under sixteen years of age. Explanation. – Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception. – Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” 42. The “punishment for rape” under Section 376 IPC, as it stood on the relevant date is also as follows:- “376. Punishment for rape. Exception. – Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” 42. The “punishment for rape” under Section 376 IPC, as it stood on the relevant date is also as follows:- “376. Punishment for rape. (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. (2) Whoever, - (a) being a police officer commits rape – (i) within the limits of the police station to which he is appointed; or (ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or (iii) on a woman in his custody or in the custody of a police officer subordinate to him; or (b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or (c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or (d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or (e) commits rape on a woman knowing her to be pregnant; or (f) commits rape on a woman when she is under twelve years of age; or (g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. Explanation 1. – Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. Explanation 2. – “Women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected women or children or a widow’s home or by any other name, which is established and maintained for the reception and care of women or children. Explanation 2. – “Women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected women or children or a widow’s home or by any other name, which is established and maintained for the reception and care of women or children. Explanation 3 – “Hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.” 43. The charge against the appellant Pramod Gupta is of gang rape. Explanation 1 of the aforesaid provision further clarifies as to what is a “gang rape”. It is “where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section”. This would mean that a person must be a member of a group which is acting in furtherance of the common intention of the group, he may or may not have actually raped the victim. What is essential is that he must be a person of the group, who is acting in furtherance of the common intention of the group. 44. Learned Senior Counsel for the appellant would argue that this is not a case of gang rape, and charge of gang rape was not even liable to be framed for the simple reason that it is the prosecution’s case as well that the prosecutrix was brought to the hotel by one single person which was Pramod Gupta, who then raped her. Later the prosecutrix received a phone call, and three more persons came to the hotel room and raped the prosecutrix. These three persons have never been identified or have faced the trial. It has not been established that they were the members of the same group as Pramod Gupta and the rape was committed with common intention and for purpose as defined in Explanation 1. There is no common intention. It is therefore not a case of gang rape at all, as far as the accused Pramod Gupta is concerned. 45. It has not been established that they were the members of the same group as Pramod Gupta and the rape was committed with common intention and for purpose as defined in Explanation 1. There is no common intention. It is therefore not a case of gang rape at all, as far as the accused Pramod Gupta is concerned. 45. So far as rape is concerned, again the essential ingredients of rape are given under Section 375 of IPC, as it stood at the relevant day, which are that a man is said to have committed rape who has sexual intercourse with a woman “(i) against her will, (ii) without her consent, (iii) with her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt, (iv) with her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married, (v) with her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent, and (vi) with or without her consent, when she is under sixteen years of age.” (emphasis provided) 46. The facts of the present case further disclose that as far as above conditions (iv), (v) and (vi) are concerned, the same are not present in the facts of the present case at all, even as per the case of the prosecution. Now the only fact which remains is whether the sexual intercourse was against her will or without her consent; or with her consent which was obtained by putting her in fear of death or of hurt. In order to arrive at this crucial fact what is extremely important is the post incident conduct of the prosecutrix. She goes in the same car in which she had come to the hotel, then to the same place i.e. “Saharanpur Chowk”. At no point of time does she raise any alarm. In order to arrive at this crucial fact what is extremely important is the post incident conduct of the prosecutrix. She goes in the same car in which she had come to the hotel, then to the same place i.e. “Saharanpur Chowk”. At no point of time does she raise any alarm. Not only this, immediately after the alleged incident, it is an admitted fact, that she stayed in the house of the accused Ashok Kumar for five days, with his family, who had actually thrown her into all this, and who were the main culprits, according to her. If she was under any kind of threat or coercion or blackmailing at the hands of any of the accused, there was no reason for her to stay in the house of the accused Ashok Kumar, after the alleged dastardly incident, when she was allegedly gang raped, in which Ashok Kumar was a party as a conspirator. But it has come in evidence that the prosecutrix stayed with the accused Ashok Kumar in his house twice for a period of 5 to 7 days. She has also made charges against the accused Ashok Kumar of unnatural sex and how he inserted the glass bottle inside her vagina, etc. PW 5 Dr. Shikha Jangpangi, who conducted the medical examination of the prosecutrix, has confirmed that this is bound to result in some kind of injuries on the private part of a woman. There is no evidence to this effect that the prosecutrix sustained injuries after the said incident. It is an admitted fact that she did not go to any doctor or showed herself to any Physician, or even relative. The medical examination though conducted after a period of two months, and therefore for whatever its worth, does not reveal any such injuries on her body. 47. The argument of the defendants/appellants before us, therefore is two fold. They have attacked the prosecution case, firstly on the ground of inordinate delay in lodging of the FIR and the second argument raised is that conviction cannot be based on the sole testimony of the prosecutrix. 48. As far as delay in lodging the FIR is concerned, particularly in a case of rape, it is not fatal, or even significant in every case. It all depends on the nature and fact of the case. 48. As far as delay in lodging the FIR is concerned, particularly in a case of rape, it is not fatal, or even significant in every case. It all depends on the nature and fact of the case. The court must look into the nature of the case and the explanation for the delay. The delay would not be significant where the prosecution has a reasonable explanation for the delay. In other words, delay itself will not weaken the case of the prosecution, when it is reasonable, or where it is suitably explained. 49. Hon’ble Apex Court in the case of Mohd. Ali alias Guddu v. State of Uttar Pradesh reported in (2015) 7 SCC 272 , on the delay in filing the FIR in a case of rape had this to say : “21. It is apt to mention here that in rape cases the delay in filing the FIR by the prosecutrix or by the parents in all circumstance is not of significance. The authorities of this Court have granted adequate protection/allowance in that aspect regard being had to the trauma suffered, the agony and anguish that creates the turbulence in the mind of the victim, to muster the courage to expose oneself in a conservative social milieu. Sometimes the fear of social stigma and on occasions the availability of medical treatment to gain normalcy and above all the psychological inner strength to undertake such a legal battle.” 50. In the case at hand, the FIR has evidently been lodged after two months of the alleged incident. There is indeed an inordinate delay in the present case. The only explanation for the inordinate delay is that the prosecutrix all through these two months was traumatised and living under fear as the two accused had videographed her obscene pictures and they were continuously blackmailing her. This explanation is not tenable for various reasons. Firstly, it has also come in the evidence that after the alleged incident, she stayed twice in the house of the accused Ashok Kumar for 5 to 6 days and more particularly the mobile phones from which the videography was done or photographs were taken and were sent for forensic examination, yet nothing has come out of it. Therefore, the threat of coercion and blackmailing, has not been proved. The delay therefore has not been explained. Therefore, the threat of coercion and blackmailing, has not been proved. The delay therefore has not been explained. Shruti Sinha is the girl with whom the prosecutrix had first opened up and confided. Her disclosure in court would have been worthwhile and to some extent explained the delay as well. She has, however, not been produced as a witness by the prosecution. 51. In the case of Rajesh Patel v. State of Jharkhand reported in (2013) 2 SCC 791, the delay in lodging of the FIR of 11 days was considered to be fatal by the Hon’ble Apex Court. One of the explanations given by the prosecution was that the prosecutrix was under threat that if she complaints to anyone, she would be killed which was not accepted as tenable by the Hon’ble Apex Court. This case has again been relied upon by the Hon’ble Apex court in the subsequent case of Mohd. Ali alias Guddu v. State of Uttar Pradesh reported in (2015) 7 SCC 272 . 52. The second aspect is regarding the testimony of the prosecutrix. It is true that evidence has to be weighed and not counted. It is the quality of evidence that matters, and yes conviction can be based on the sole testimony of the prosecutrix, which is a settled principle of law. But when conviction can be based on the sole testimony of the prosecutrix, then the court must be very careful in evaluating such evidence. The settled principle of law on this is also that if the evidence of the prosecutrix is found to be credible and inspires confidence of the court, then it can be relied upon by the court and it need not be even corroborated by any other evidence. The evidence of the prosecutrix in such cases is at par with the evidence of an injured witness. But if in a case this evidence is not of the level as mentioned above, the court must look for corroboration elsewhere. This aspect has been summarized by the Hon’ble Apex Court in the case of Hem Raj S/o Moti Ram v. State of Haryana reported in (2014) 2 SCC 395 , where the Hon’ble Apex Court has this to say : “6. In a case involving charge of rape the evidence of the prosecutrix is most vital. This aspect has been summarized by the Hon’ble Apex Court in the case of Hem Raj S/o Moti Ram v. State of Haryana reported in (2014) 2 SCC 395 , where the Hon’ble Apex Court has this to say : “6. In a case involving charge of rape the evidence of the prosecutrix is most vital. If it is found credible, if it inspires total confidence, it can be relied upon even sans corroboration. The court may, however, if it is hesitant to place implicit reliance on it, look into other evidence to lend assurance to it short of corroboration required in the case of an accomplice. (See State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 ). Such weight is given to the prosecutrix’s evidence because her evidence is on a par with the evidence of an injured witness which seldom fails to inspire confidence. Having placed the prosecutrix’s evidence on such a high pedestal, it is the duty of the court to scrutinise it carefully, because in a given case on that lone evidence a man can be sentenced to life imprisonment. The court must, therefore, with its rich experience evaluate such evidence with care and circumspection and only after its conscience is satisfied about its creditworthiness rely upon it.” 53. In the above mentioned case, the trial court as well as the appellate court had convicted the accused of rape on the sole testimony of the prosecutrix, which were held to be wrong, and the conviction was set aside. Of course, facts of each case differ, but we have to evaluate the facts on the touch stone of the law which is that though the evidence of the prosecutrix is enough for conviction in a given case, this evidence has to be scrutinised and if there is doubt, then corroboration must be sought elsewhere by the court. 54. In the present case, apart from the testimony of the prosecutrix, there is no other worthwhile evidence. Now let us examine the statement of the prosecutrix. It is true that in the FIR, and later in her statement before the Magistrate under Section 164 of CrPC and finally in her examination-in-chief and cross-examination, she has stuck to the story of rape. Now let us examine the statement of the prosecutrix. It is true that in the FIR, and later in her statement before the Magistrate under Section 164 of CrPC and finally in her examination-in-chief and cross-examination, she has stuck to the story of rape. Nevertheless, at no stage has she been able to give any credible explanation, either as to the delay, or to the so-called threat perception at the hands of the appellants, who were blackmailing her. The medical evidence also does not support the case of the prosecution. Her conduct immediately after the incident also weakens her case, to which we shall come now. 55. The conduct of the prosecutrix before and after the incident has to be seen in view of Section 8 of the Evidence Act, 1872. Section 8 of the Evidence Act, 1872 reads as under: “8. Motive, preparation and previous or subsequent conduct. – Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Explanation 1. – The word “conduct” in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act. Explanation 2. When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.” 56. No force or coercion was applied to her when she entered the premises of the hotel or the hotel room. Immediately after the alleged incident of rape, again there is no effort on her part to raise an alarm or lodge an FIR or make any sort of complaint. Her explanation of this is the obscene photographs, of which there is no worthwhile evidence. Further she also stayed with the accused Ashok Kumar for 5 to 7 days after the incident. Her explanation of this is the obscene photographs, of which there is no worthwhile evidence. Further she also stayed with the accused Ashok Kumar for 5 to 7 days after the incident. All this at least creates doubt on her testimony. In our most opinion therefore the trial court was not correct in convicting the accused on the sole testimony of the prosecutrix. 57. Under these circumstances, we are of the opinion that the prosecution has not been able to prove its case beyond reasonable doubt against the appellant Pramod Gupta. The doubt belongs to the accused. He was liable to be given a benefit of doubt. Consequently, the Criminal Appeal No. 447 of 2013 is liable to be allowed. 58. As far as the accused Ashok Kumar, appellant in Criminal Appeal No.427 of 2013 is concerned, the evidences are the same against him as well. For the same reasons as above, we are of the opinion that the accused Ashok Kumar was not liable to be convicted and was liable to be given the benefit of doubt, and acquitted. 59. There is another aspect to this case, which must be referred now. As far as Ashok Kumar appellant in Criminal Appeal No.427 of 2013 is concerned, he was only charged by the Special Judge under Sections 366 & 377 IPC. He was never charged under Section 120-B IPC or under Section 354 IPC, yet he has been convicted under Sections 366, 120-B and 354 IPC. Admittedly, the appellant Ashok Kumar was never charged under Section 120-B or under Section 354 IPC. 60. This aspect has to be seen in the light of Section 464 CrPC, which reads as under: “464. Effect of omission to frame, or absence of, or error in, charge. – (1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder or charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. (2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may – (a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge. (b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit: Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.” 61. It is true that finding and sentence of a court cannot be held to be invalid merely on the ground that a charge was not framed or on the ground of error, omission or irregularity in the charge, inter alia, on framing of a charge, yet the fact remains that if the appellate court or even the revisional court is of the view that such omission has resulted in failure of justice then the matter shall be remanded. We are, however, not dealing with this issue as we have already held that based on the evidences itself, the conviction was not proper. 62. Consequently, both the appeals are allowed. Conviction and sentence imposed on the appellant Pramod Gupta and Ashok Kumar by the trial court vide judgment and order dated 25/26.09.2013 are hereby set aside. The appellants are already on bail. Their bail bonds are cancelled and sureties are discharged. 63. Let a copy of this judgment along with the lower court record be sent to the court concerned for onward compliance.