JUDGMENT 1. By this criminal appeal, a challenge is made to the order dated 29th October, 2013, passed by the Additional Sessions Judge, Srimadhopur, District Sikar (Rajasthan) in Session Case No. 03/2012. The accused-appellants were convicted for offences under Sections 363 and 376(2)(g) IPC and sentenced as under: Appellant-Naveet: For offence under Section 363 IPC - Five years rigorous imprisonment with fine of Rs. 5,000/-, in case of default to pay fine, to further undergo three months simple imprisonment. For offence under Section 376(2)(g) IPC - Life imprisonment with fine of Rs. 10,000/-, in case of default to pay fine, to further undergo six months simple imprisonment. Appellant-Shyamsunder: For offence under Section 376(2)(g) IPC - Life imprisonment with fine of Rs. 10,000/-, in case of default to pay fine, to further undergo six months simple imprisonment. Accused-Bajranglal: For offence under Section 376(2)(g) IPC - Life imprisonment with fine of Rs. 10,000/-, in case of default to pay fine, to further undergo six months simple imprisonment. Accused-Hitesh: For offence under Section 376(2)(g) IPC - Life imprisonment with fine of Rs. 10,000/-, in case of default to pay fine, to further undergo six months simple imprisonment. Accused-Suresh Kumar: For offence under Section 376(2)(g) IPC - Life imprisonment with fine of Rs. 10,000/-, in case of default to pay fine, to further undergo six months simple imprisonment. Accused-Pradeep Kumar: For offence under Section 376(2)(g) IPC - Life imprisonment with fine of Rs. 10,000/-, in case of default to pay fine, to further undergo six months simple imprisonment. BRIEF FACTS OF THE CASE: 2. It is a case where an FIR was registered on a written report, Exhibit-P3, on 15th October, 2011. It was alleged that on 12th October, 2011, the prosecutrix went with her bhabhi (Suman) to Khandela Government Hospital where one Navneet Sharma S/o. Surendra Sharma was available. After examination of the prosecutrix by a doctor, she was prescribed certain investigation. Naveen Sharma known to bhabhi-Suman asked prosecutrix to come for investigation with him and, accordingly, the prosecutrix went with Navneet Sharma. Bhabhi-Suman was also to accompany them but having a baby with her, she was asked to go back. 3. The accused-Navneet Sharma then took the prosecutrix to an isolated place where four to five persons were available. The offence under Section 376(2)(g) IPC was committed by all the accused. Bhabhi-Suman was also to accompany them but having a baby with her, she was asked to go back. 3. The accused-Navneet Sharma then took the prosecutrix to an isolated place where four to five persons were available. The offence under Section 376(2)(g) IPC was committed by all the accused. The report of the incidence was not lodged immediately under fear and threatening given by the accused. It was lodged after three days when prosecutrix felt unwell out of the occurrence. On the written report, the police registered an FIR and caused investigation. It filed charge sheet against accused-Navneet Sharma for offence under Section 363 and 376(2)(g) IPC, whereas, for other accused, it was under Section 376(2)(g) IPC. The trial court framed charges and explained it to the accused-appellants. They denied the charges, thus trial commenced. 4. The prosecution produced fifteen witnesses apart from forty four documents to prove its case. Two documents were marked by the court i.e. Exhibit-C1 and Exhibit-C2. The statements of the accused-appellants were recorded under Section 313 Cr.P.C. They produced twenty one documents in defence. The trial court, after marshalling the evidence, convicted the accused-appellants for the offences under Sections 363 and 376(2)(g) IPC. ARGUMENTS OF THE ACCUSED-APPELLANTS: 5. Learned counsel for appellants submits that all the accused have been falsely implicated in the case. As per statements of prosecutrix, P.W.2 and P.W.4 Suman Sharma, on 12th October, 2011, they went to the Government Hospital at Khandela. The accused-Navneet Sharma said to be available in the hospital. He took the prosecutrix with him and committed rape along with others. 6. It is submitted that prosecutrix had conversation on mobile with Navneet Sharma prior to commission of offence and even calls were made subsequent to the occurrence also. The call details were not submitted by the prosecution but it was produced in defence. In view of the above, the accused and the victim were knowing each other, thus it was a case of consent, offence under Section 376(2)(g) IPC is not made out. 7. The medical report of prosecutrix, Exhibit-P1, does not show any injury either on the private part or other parts of the body. It also shows that no occurrence took place if it is examined in reference to the cross-examination of P.W.2 (prosecutrix). In the cross-examination, she has given description of the place where alleged rape was committed. 7. The medical report of prosecutrix, Exhibit-P1, does not show any injury either on the private part or other parts of the body. It also shows that no occurrence took place if it is examined in reference to the cross-examination of P.W.2 (prosecutrix). In the cross-examination, she has given description of the place where alleged rape was committed. It is stated to be rocky floor. No injury on the back or other parts of body has been shown out of rape, even by the prosecutrix. The aforesaid is not possible when six persons committed rape, that too, forcefully. The prosecutrix has even admitted that her clothes were intact. It can happen only when there is a consent, otherwise, the way occurrence has been described, cannot take place. 8. It is also stated that as per FSL reports, Exhibit-C1 and Exhibit-C2, the semen was found on the undergarments of the prosecutrix but it was not on the clothes of the accused-appellants so as to connect them with the crime. No explanation about delay in lodging an FIR has been given. 9. The occurrence took place on 12th October, 2011, whereas, FIR was lodged on 15th October, 2011. If occurrence would have taken place in the manner described by the prosecutrix, there was no reason not to report the incidence on the same day. The delay in lodging the FIR is fatal and otherwise, prosecution failed to produce DNA test to connect accused with the crime. 10. Coming to the identification parade, it is stated that all the accused were arrested much prior to the identification parade. It was conducted almost after fifteen days without proper explanation. It is stated that no description of accused-appellants was given so as to identify them in the identification parade. The prosecutrix was knowing Navneet Sharma alone and not to others. She did not state about their physique or even the clothes so as to match it during the identification parade. The identification parade was for the sake of it, that too, when it was conducted after lapse of days, thus should not have been relied by the trial court. In view of the facts given above, the order of the trial court deserves to be set aside with acquittal of the accused-appellants. 11. The identification parade was for the sake of it, that too, when it was conducted after lapse of days, thus should not have been relied by the trial court. In view of the facts given above, the order of the trial court deserves to be set aside with acquittal of the accused-appellants. 11. At this stage, it is submitted that if the case is found against accused-Navneet Sharma, then to cause interference in the sentence taking into consideration the mitigating circumstances. It is not only his age but the fact that incidence may have taken place with the consent. The consent of minor carries no meaning for the purpose of conviction but it can be for the purpose of sentence. 12. A reference of the judgment of the Division Bench in the case of Mandroop & Anr. v. State of Rajasthan , DB Criminal Appeal No. 654/2013, decided on 30th January, 2016 has been given. Therein, in the case of gang rape, the Co-ordinate Bench reduced the sentence. A prayer is, accordingly, to cause interference in the sentence of life imprisonment. ARGUMENTS OF THE SIDE OPPOSITE: 13. Learned Public Prosecutor and the counsel for complainant have contested the appeal. It is submitted that prosecutrix has maintained her statements throughout. It is under Section 161 and 164 Cr.P.C. apart from the court naming accused-Navneet Sharma for causing offence along with five other persons. Taking into consideration consistency in the statements, the trial court has rightly believed her testimony to convict all the accused. It is moreso when she had identified five other persons in the identification parade and even in the court. In view of the above, the trial court has rightly convicted accused-appellants for offences under Section 363 and 376(2)(g) IPC. 14. Learned Public Prosecutor has further submitted that delay in lodging FIR is not fatal in the cases of offence under Section 376(2)(g) IPC. At times, the prosecutrix may not be in a position to state the occurrence and it can be for multiple reasons. In view of the above, delay in lodging FIR should not be taken to the benefit of accused against whom prosecution could bring evidence to prove its case beyond doubt. 15. A reference of statement of P.W.1-Dr. At times, the prosecutrix may not be in a position to state the occurrence and it can be for multiple reasons. In view of the above, delay in lodging FIR should not be taken to the benefit of accused against whom prosecution could bring evidence to prove its case beyond doubt. 15. A reference of statement of P.W.1-Dr. Bhanwarlal has also been given to show that prosecutrix was not habitual of intercourse though her hymn is shown to be old torn though it has not been mentioned in the injury report, Exhibit-P1. The injury report and the statement of Dr. Bhanwarlal do not show any injury to the prosecutrix. Learned Public Prosecutor submits that it is not necessary that in all the cases where offence under Section 376 IPC is committed, the prosecutrix may receive injuries either on the private part or other part of the body. The reference of clothes of the prosecutrix has also been given. It was recovered and sent to the Forensic Science Laboratory where semen was found on the undergarments which proves the prosecution case, thus trial court has rightly convicted accused-appellants for offences under Sections 363 and 376(2)(g) IPC. A prayer is to maintain the order of the trial court and accordingly, dismiss the appeal. FINDING OF THE COURT: 16. We have considered rival submissions of learned counsel for the parties and perused the record. 17. It is a case where an FIR, Exhibit-P4, was registered after three days of occurrence. The occurrence alleged to have taken place on 12th October, 2011, whereas, the FIR was registered on 15th October, 2011. To prove the case, the statement of prosecutrix, P.W.2, was recorded. It was stated that on 12th October, 2011, she along with her bhabhi went to Khandela Government Hospital. The Doctor prescribed certain investigation. The accused-Navneet Sharma known to bhabhi was available in the hospital. After seeing the prosecutrix, Navneet Sharma volunteered his service to her. The bhabhi having a baby girl was asked to go back. 18. Navneet Sharma, thereupon, took the prosecutrix to an isolated place where four to five persons were present. Navneet Sharma committed rape after removing her clothes and, thereupon, other five persons also committed rape on her. She returned back to her home in a bus. One of the accused left her on the motorcycle to the bus stand. 18. Navneet Sharma, thereupon, took the prosecutrix to an isolated place where four to five persons were present. Navneet Sharma committed rape after removing her clothes and, thereupon, other five persons also committed rape on her. She returned back to her home in a bus. One of the accused left her on the motorcycle to the bus stand. She did not report occurrence to the family members under fear and threatening. In the cross-examination, it was admitted that her clothes were removed and she was laid on the soil and the stone pebbles. The rape was committed thereupon. She did not receive any injury on her back side or elsewhere. The total time to commit the offence is shown to be of 1 hours. 19. The prosecutrix has shown her age to be less than 18 years, for which, the documents, Exhibit-P15, Exhibit-15A, Exhibit-16A, Exhibit-17 and Exhibit-17A, were produced. The perusal of those documents shows prosecutrix age to be less than 18 years. The fact, however, remains that in the medical report of prosecutrix (victim), Exhibit-P1, no injury on the private or other parts of the body has been shown, for which, the statements of P.W.1-Dr. Bhanwarlal and P.W.10-Dr. Atal Singh are relevant. They examined the prosecutrix and stated that no injury was found on her body. In the cross-examination, it was admitted that prosecutrix hymn was old torn. The pregnancy test of the prosecutrix was conducted but no pregnancy was found. 20. The statement of P.W.1-Dr. Bhanwarlal corroborates the statement of prosecutrix, P.W.2 and Exhibit-P1 where no injury was found on her body. It is despite her statement in the cross-examination that rape was committed after laying her on the soil and stone pebbles. 21. If 5 to 6 persons commit rape on a rough surface, that too, in forceful manner, the injuries to the prosecutrix would come. It would not come if it is done with the consent. The aforesaid is one part and otherwise, an FIR was lodged after three days of the occurrence. The justification out of fear and threatening has been given. If somebody is subjected to gang rape, one would not keep it with her but to report it to the family members and police immediately. It is moreso when commission of rape on a minor girl is by 4 to 5 persons. The justification out of fear and threatening has been given. If somebody is subjected to gang rape, one would not keep it with her but to report it to the family members and police immediately. It is moreso when commission of rape on a minor girl is by 4 to 5 persons. She has not received any injury, rather, comfortably went to her home on the day of occurrence. All these issues have not been taken into consideration by the trial court. 22. It is also a fact that in the FSL reports, Exhibit-C1 and Exhibit-C2, the semen was found on the clothes of the prosecutrix but not on the clothes of accused so as to connect them with the crime. We further find that prosecutrix was not knowing other accused than Navneet Sharma but she had not given description of those accused while making statement under Section 161 Cr.P.C. It is about the physique or the complexion and lastly even clothes. The description of this is necessary for identification. In view of the above, the identification parade of accused becomes doubtful. It is even for the reason that identification parade was conducted after lapse of several days of arrest. No justification for delay in holding identification parade has been given, yet relied by the trial court. 23. The allegation about involvement of five persons unknown to the prosecutrix thus becomes doubtful. It is for the reason that even after commission of rape by 5 to 6 persons on a rough surface, the prosecutrix has not received any injury. If it was done by unknown persons, the description of physique should have been given by the prosecutrix, which is also missing here. It is apart from the fact that clothes recovered from the accused were sent to the Forensic Science Laboratory but nothing was found to connect them with the crime. 24. Learned counsel for appellants submits that prosecutrix went with accused-Navneet Sharma and if anything was done, it was with the consent. It seems that Navneet Sharma and the prosecutrix were seen in compromising position by 4 to 5 persons and to cover the aforesaid, their names were given without their involvement in the crime. The fact aforesaid has been projected by the conduct of the prosecutrix. It is stated that phone calls were made by the prosecutrix to Navneet Sharma prior and subsequent to the occurrence. 25. The fact aforesaid has been projected by the conduct of the prosecutrix. It is stated that phone calls were made by the prosecutrix to Navneet Sharma prior and subsequent to the occurrence. 25. The fact aforesaid shows that accused-Navneet Sharma and prosecutrix were known to each other and she had willingly went with Navneet Sharma. It was not for investigation as the doctor did not prescribe any investigation but prescribed only medicine. In those circumstances, no injury on private or other parts of the body was received by the prosecutrix. The prosecutrix, however, made allegation against all the accused for commission of rape but looking to the facts on record and as hymn of the prosecutrix was found old torn, the implication of accused other than Navneet Sharma is without any evidence. 26. The delay in lodging an FIR is fatal in reference to five unknown persons as it was used for their implication. The justification for delay is given due to ill-health of the prosecutrix but it has not been proved. It is not available on record that she was sick or unwell after a day or two days of occurrence so as to justify the delay. Taking into consideration the facts aforesaid, we do not find that prosecution could bring evidence to prove its case beyond doubt against accused-appellants-Suresh Kumar, Hitesh, Shyam Sunder, Bajranglal and Pradeep Kumar. 27. So far as accused-Navneet Sharma is concerned, the prosecutrix has named him for commission of offence from the very beginning. As per medical report and the statement of prosecutrix, no injury has been received by her. It can be if commission of offence is with the consent of the parties. The fact, however, remains that prosecutrix is minor, thus her consent carries no meaning in reference to accused-Navneet Sharma. 28. The call details between Navneet Sharma and the prosecutrix prove their relation. They were known to each other even prior to the occurrence. Looking to the aforesaid, we find a case against accused-Navneet Sharma for offences under Section 363 and 376 IPC. Accordingly, conviction of accused-Navneet Sharma is maintained for offence under Section 363 IPC while substituting it from Section 376(2)(g) IPC to Section 376 IPC. Accordingly, interference in the order of the trial court is made. All other accused-appellants are acquitted and, as such, their conviction and sentence are set aside. 29. Accordingly, conviction of accused-Navneet Sharma is maintained for offence under Section 363 IPC while substituting it from Section 376(2)(g) IPC to Section 376 IPC. Accordingly, interference in the order of the trial court is made. All other accused-appellants are acquitted and, as such, their conviction and sentence are set aside. 29. Learned counsel for accused-Navneet Sharma was heard on sentence. It is stated that he was at the age of 21 years when alleged offence was committed and the evidence available on record shows consent between the parties. Taking into consideration those mitigating circumstances, we cause interference in the order of sentence and, accordingly, accused-Navneet Sharma is sentenced as under: (i) The conviction of accused-Navneet Sharma for offence under Section 376(2)(g) is substituted by Section 376 IPC, thus he is sentenced to ten years rigorous imprisonment with fine of Rs. 10,000/-, in case of default to pay fine, to further undergo six months simple imprisonment. The conviction and sentence of accused-appellant-Navneet Sharma for offence under Section 363 IPC is maintained as has been given by the trial court. The sentence would run concurrently. (ii) The other accused-appellants-Suresh Kumar, Hitesh, Shyam Sunder, Bajranglal and Pradeep Kumar are acquitted of the offence under Section 376(2)(g) IPC by giving them benefit of doubt. Since they are on bail, their bail bonds be discharged. 30. The criminal appeal stands disposed of with the aforesaid. 31. As per Section 437-A of the Code of Criminal Procedure, accused-appellants-Suresh Kumar, Hitesh, Shyam Sunder, Bajranglal and Pradeep Kumar are directed to furnish a personal bond in the sum of Rs. 50,000/- each with one surety in the like amount before the Registrar (Judicial) of this Court, which will be effective for a period of six months with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellants will appear before the Supreme Court on receipt of notice thereof.