JUDGMENT : SUDHANSHU DHULIA, J. 1. The present two criminal appeals have been filed by the appellants against a common judgment and order dated 24.01.2017 passed by the Additional Sessions Judge, Ramnagar, District Nainital in Sessions Trial No.44 of 2016 “State Vs. Rajesh & another”, whereby the accused/appellants have been convicted under Section 376-D of IPC and have been sentenced for twenty years rigorous imprisonment with a fine of Rs.20,000/- (Rupees Twenty Thousand Only) each and in case of default in payment of fine, they shall undergo six months additional simple imprisonment under Section 376-D of IPC. The accused/appellants have further been convicted under Section 323 of IPC and have been sentenced for six months rigorous imprisonment with a fine of Rs.500/- (Rupees Five Hundred Only) each and in case of default in payment of fine, they shall undergo fifteen days additional simple imprisonment. 2. Both the victim as well as the accused/appellants before this Court are labourers who work in the unorganized sector. Their work is of loading of riverbed material on “buggis”, truck and other carriers. Although they are permanent resident of District Rampur in Uttar Pradesh, but presently they reside at Ramnagar, District Nainital, by making a temporary shed called “Jhopdi”, near their workplace. The alleged incident is said to have been committed by two such labourers who were aged around 18 to 20 years respectively. The victim and her husband are also labourers in the same place. The victim was aged between 35 to 40 years at the time of the alleged crime. 3. The first information report lodged by the prosecutrix on 06.04.2016 at Police Station Kotwali Ramnagar, at 11:33 P.M., says that she works on the bank of Kosi River. Her husband and her children are also engaged in the same work. Two days back i.e. on 04.04.2016 at about 09:00 P.M., when she had gone to answer the call of the nature, the accused Udal and Rajesh caught hold of her, gagged her by a cloth and then raped her repeatedly. One of the assailants was also carrying a knife with which she was threatened. 4. The prosecutrix was also beaten up by the accused persons. It is alleged that they kicked her on her private parts. Meanwhile, Brijesh, who is also a labourer and works in the same area arrived at the scene and saw the prosecutrix being raped by the appellants. 4. The prosecutrix was also beaten up by the accused persons. It is alleged that they kicked her on her private parts. Meanwhile, Brijesh, who is also a labourer and works in the same area arrived at the scene and saw the prosecutrix being raped by the appellants. He tried to intervene, but was slapped by the two, as a result he ran away from the spot. Thereafter, Pappu who is another labourer, came to the spot and he wanted to physically confront the accused as he was carrying a “Belcha”, but both the accused ran away from the spot, after ravishing the victim. Later, the prosecutrix informed her husband and requested him for medical examination. Later the first information report was lodged. 5. The accused Rajesh was arrested on 08.04.2016 at 09:51 A.M. from the same place, but the another accused, namely, Udal, as per the prosecution, was initially absconding, but later surrendered only on 29.05.2016. Meanwhile, the prosecutrix was medically examined on 07.04.2016 at R.D. Joshi Government Combined Hospital Ramnagar, District Nainital by a lady Doctor. 6. The statement given by the victim to the Doctor at the time of her medical examination was the first statement given by the prosecutrix, which needs to be examined. Her statement recorded in the medical report is as under:- “According to the victim, she had gone to the river side to answer natures call (sic answer the call of nature) on 4/4/2016 around 8 PM, when two guys (whom she knows by name and live in her village), nabbed her and raped her, one by one. She tried to free herself and cried for help. Hearing her voice a guy named Pappu came to that place, seeing him, those rapists fled away. She went back home, took bath and changed her clothes after that. She informed her husband about the incident who informed the gram pradhan and after three days, today, she complained to the police.” 7. The medical report also records that the victim was slapped by the accused, as per her statement. Although “no injury marks seen on the body”. She also reported abdominal pain after the incident and thereafter her ultrasound was done. 8. The medical report also records that the victim was slapped by the accused, as per her statement. Although “no injury marks seen on the body”. She also reported abdominal pain after the incident and thereafter her ultrasound was done. 8. The supplementary report which was prepared after the ultrasound examination and other reports were received shows as follows:- “Victim………….W/o…………..age approximately 40 yr, R/o Kalu Sayyed Gate examined on 07.04.16 at 12.55 PM with h/o Rape. No injuries marks were seen on the body. According to the victim, she was slapped by the accused and she complaint of pain Abdomen after the incident. She was advised ultra sound whole Abdomen which shows no evidence of any abnormalities and was suggestive of Inflammatory disease. Vaginal smear was taken on two slides and sent to pathologist base hospital, haldwani for detection of any alive or dead spermatozoa which shows no spermatozoa. Victim had taken bath after the incident and reported after three days to the police.” 9. The above report was signed by Doctor Archana Kaushik, who is also examined as PW 4, to which we will come in a while. 10. The statement of the prosecutrix under Section 164 of Cr.P.C. was recorded on 05.05.2016, though in our view highly belatedly i.e. after a period of one month of the alleged incident. 11. There are slight discrepancies in her statement given under Section 164 Cr.P.C. before the learned Magistrate and the facts which she has stated in the FIR as to the arrival of Pappu and Brijesh at the relevant time, but that would not be relevant considering that the prosecutrix is illiterate, who is a labourer. 12. The Police after investigation filed its charge-sheet against the two accused under Sections 376-D and 323 of IPC. Thereafter, the Additional District and Sessions Judge, Ramnagar, Nainital framed charges against both the accused under Section 376-D read with Section 323 of IPC. 13. The prosecution examined as many as eight witnesses. The most important witness in this case is the prosecutrix herself, who has been examined as PW1. 14. She reiterates her story as given by her in the FIR, and in her statement under Section 164 CrPC with some discrepancies. There was no explanation as to the delay in the FIR as the FIR was admittedly lodged after a period of more than 48 hours of the alleged incident. 14. She reiterates her story as given by her in the FIR, and in her statement under Section 164 CrPC with some discrepancies. There was no explanation as to the delay in the FIR as the FIR was admittedly lodged after a period of more than 48 hours of the alleged incident. There was also an admission in her cross-examination that she accompanied her husband to Tehsil where they consulted a lawyer before finally reducing the FIR in writing, which was subsequently lodged with the police. 15. The two witnesses to the incident i.e., Brijesh and Pappu who had seen the alleged rape being committed by the present appellants on the prosecutrix have turned hostile. They were examined as PW5 and PW7 respectively. Though they have admitted that they live in the same “basti” near the riverside and are also labourers like the victim and the accused, but they have denied their presence at the alleged incident or that they had seen any such incident. 16. PW2 Yaad Ram is the husband of the victim who has supported the case of the prosecutrix and said that he was informed by Brijesh that Rajesh and Udal have caught hold of his wife and she was raped. When this witness reached the spot, he was informed by his wife that Rajesh and Udal had raped her, but it was only when Pappu had intervened that the two accused ran away. He does give explanation as to the delay in lodging the FIR in his examination-in-chief he says that on 04.04.2016, they did not go anywhere and on 05.04.2016 they were kept confined in their house because they were shamed, and were in a state of shock. It was only on 06.04.2016 that they went to Tehsil to prepare the FIR. It has also come in evidence that in the Tehsil they consulted a lawyer, before lodging the FIR. 17. Another important witness in this case is PW 4 Dr. Archana Kaushik who had medically examined the prosecutrix at R.D. Joshi Government Combined Hospital on 07.04.2016. She does state categorically that the prosecutrix was complaining of abdominal pain but on examination nothing has come out. There were no injuries on the body of the victim, which could suggest that she was raped. The prosecutrix, however, has also said that she was gang raped by two persons, namely, Rajesh and Udal. 18. She does state categorically that the prosecutrix was complaining of abdominal pain but on examination nothing has come out. There were no injuries on the body of the victim, which could suggest that she was raped. The prosecutrix, however, has also said that she was gang raped by two persons, namely, Rajesh and Udal. 18. Two important aspects need to be considered by the court. The first is the delay in the first information report which is of more than 48 hours, and the second would be that apart from the testimony of the prosecutrix herself, the prosecution had no evidence before the trial court, and therefore, whether it was justified for the trial court to have convicted the appellants on the strength of the testimony of the prosecutrix herself would be the second question. 19. As regarding the first, we must say that the delay is not significant in every case, particularly in a case of rape. It is natural for the victim and her family members to be in a state of shock. They may not report the matter immediately to the police for shame, shock and for many other reasons. Therefore, delay itself would not be relevant. We must also see the background of the victim. In the present case the victim comes from the lowest stratum of society and evidently not well versed of court proceedings, therefore delay itself would not be fatal in the present case. In any case, PW2 who is the husband of the victim has categorically stated in his examination-in-chief that the incident happened in the night of 04.04.2016, and the next day i.e. on 05.04.2016, they remained in their house because of the shame. It is totally understandable that the FIR was lodged belatedly as the family was in a state of shock. 20. The 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 is 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. 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.” 21. So, delay in itself may not be material, we have to examine whether there are reasonable explanations for the delay. 22. The second aspect is regarding the testimony of the prosecutrix. Evidence has to be weighed and not counted. It is the truthfulness of the evidence which matters, and conviction can be based on the sole testimony of the prosecutrix. 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 that if the evidence of the prosecutrix is found to be credible and it 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. But in case it is not of the level as mentioned above, then the court must look for corroboration elsewhere. This aspect has been summarised 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 had 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 ). 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.” 23. 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. The orders were set aside by the Hon’ble Apex Court and the accused were acquitted. Indeed cases differ on facts, but in a case of rape, when the sole evidence of prosecutrix is not convincing, then for corroboration, courts must look elsewhere for evidence. 24. The conduct of the prosecutrix before and after the incident has also 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. 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.” 25. This is a case of gang rape. The place where the rape was committed was not very far from the habitat of both the victim and the assailants. According to the prosecutrix, she could not shout as she was gagged inasmuch as a piece of cloth was choked in her mouth. She also states that she was slapped by the assailants and the accused persons had also kicked her and gave her blows on her private parts. Although the medical examination has been done three days after the incident, but there were no injuries anywhere on the body of the prosecutrix, leave aside her private parts. She complained of abdominal pain, which again as per the Ultrasound report is also non-specific. 26. In this light, the testimony of the prosecutrix becomes doubtful. The doubt always belongs to the accused. Therefore, we are of the considered view that based on the strength of evidences, which were there with the prosecution, the prosecution has not been able to prove its case beyond reasonable doubt. 27. In view of the above, both the criminal appeals are allowed. The judgment and order dated 24.01.2017 passed by the trial court is set aside. The appellants are acquitted of the charges levelled against them. The appellants are in jail. They shall be released forthwith, unless wanted in any other case. 28. Let a copy of this judgment along with the lower court record be sent back to the trial court for onward compliance. 29. Let the Registry forthwith inform the concerned jail authorities about this order.