JUDGMENT : Ratnaker Bhengra, J. Heard Mr. Bhola Nath Rajak, the learned amicus curiae, who appeared on behalf of the appellant in Cr. Appeal (S.J.) No. 348 of 2010, Mr. Bhaiya Vishwajeet Kumar, the learned counsel, who appeared for the appellant in Cr. Appeal (S.J.) No. 1360 of 2008 and Mrs. Nehala Sharmin, the learned APP, who appeared for the State in both the cases. 2. Both these criminal appeals are preferred against the judgment of conviction dated 27.08.2008 and the order of sentence dated 01.09.2008 passed by the learned 2nd Additional Sessions Judge, Hazaribag in Sessions Trial No. 460 of 2006, whereby and whereunder, the appellants were convicted under sections 363, 366A and 376(2)(g) of the Indian Penal Code and sentenced to undergo RI for three years each under section 363 IPC, RI for seven years each under section 366A IPC and appellants were further sentenced to undergo RI for seven years under section 376 (2) (g) IPC. All the sentences were ordered to run concurrently and period already undergone during investigation and trial were ordered to be set-off. 3. The case of prosecution, in brief, as per the fardbayan dated 17.04.2006 of the informant PW-6 Baharuddin Ansari, resident of village-Huag (Tola Dariya mohalla) P.S.-Mandu, District-Hazaribag is that on 03.04.2006 at 14:00 hours his daughter PW-5 or victim (name concealed) aged about 14 years and his niece PW-1 (name concealed) aged about 12 years had proceeded to Barkagaon to the house of their fufi (aunt). They reached Mandu and boarded on a commandor jeep for going to Hazaribag. When the jeep reached at Charhi, the driver of the jeep Rajesh Kumar Kushwaha alighted all the other passengers of the jeep at Charhi Bazar Tand and said to these two girls that they will be left to their destination at Barkagaon but the jeep crossed Charhi ghati and started going towards the forest. The two girls protested, but they were threatened by the driver with dire consequences and hence both the girls remained silent out of fear. Thereafter, driver took the jeep towards non-metal road inside the forest and then the driver Rajesh Kumar Kuswaha and khalasi Suresh Kumar Mahto one by one committed rape upon the informant’s daughter. The two girls protested, but they were threatened by the driver with dire consequences and hence both the girls remained silent out of fear. Thereafter, driver took the jeep towards non-metal road inside the forest and then the driver Rajesh Kumar Kuswaha and khalasi Suresh Kumar Mahto one by one committed rape upon the informant’s daughter. Thereafter, both the girls were taken to the village-Jharpo, Tola-Barmakka, P.S.-Ichak, District-Hazaribag to the house of the driver and both the girls were locked in a room for 10-12 days and during this period informant’s daughter was raped several times by the driver and cleaner. His niece PW-1 started crying and she left taking food, then, on 15.04.2006 accused persons got her seated in a bus going to Hazaribag-Mandu, but, his daughter was kept in possession by the accused persons. Informant further stated that his niece PW-1 anyhow returned to the house on 15.04.2006 in the night and narrated the entire story to the informant and family members of the house and thereafter, the informant came to know about the kidnapping of his daughter and rape committed on her. On the next day i.e. on 16.04.2006, the informant and other persons along with his niece went to Charhi and Hazaribag taxi stand in search of the aforesaid commandor jeep. In the meantime, at about 6:30 pm in the evening, they found the commandor Jeep bearing registration No. JH-02-2225 and his niece PW-1 identified the said jeep, driver and cleaner. Thereafter, the driver and cleaner were apprehended by the informant with the help of other persons and on query, the driver of the jeep accepted that informant’s daughter was kept in his house. Then, the informant along with the driver and cleaner went to the driver’s village and with the help of local people informant’s daughter was recovered from a room. The informant stated that driver Rajesh Kumar Kuswaha and cleaner Suresh Kumar Mahto had put his daughter in fear of death and committed rape upon his daughter. The accused persons were handed over to Mandu police on 17.04.2006. 4. On the basis of the fardbeyan of the informant Mandu P.S. Case No. 121/2006 dated 17.04.2006 was registered under sections 363, 366A and 376/34 IPC against both the appellants. The accused persons were handed over to Mandu police on 17.04.2006. 4. On the basis of the fardbeyan of the informant Mandu P.S. Case No. 121/2006 dated 17.04.2006 was registered under sections 363, 366A and 376/34 IPC against both the appellants. After investigation, charge-sheet was submitted under sections 363, 366A and 376/34 of IPC against both the appellants and cognizance of the offences were taken and the case was committed to the court of Sessions for trial. Trial was held and at the conclusion of trial, both the appellants were convicted and sentenced as aforesaid. Hence, these appeals. 5. Prosecution has examined altogether six witnesses in support of its case out of whom PW-6 Baharuddin Ansari is the informant of the case; PW-5 is the informant’s daughter or the victim upon whom rape has been alleged to have been committed and PW-1 is the informant’s niece; PW-2 Md. Rijwan Ansari is the brother of one victim or PW-5; PW-3 Md. Ramjan is the father of PW-1 and PW-4 is Liyakat Ansari. Investigating Officer B.K. Kisku was examined u/s 311 Cr.P.C. 6. PW-5 is the alleged victim girl, who has stated in her evidence that 1-1½ years ago she along with her cousin sister (PW-1) had proceeded to Barkagaon from her house at 12:00 p.m. to the house of their fufi (aunt). They reached Mandu and at 1:30 p.m. and they boarded on Commander Jeep from Mandu Block. The jeep was stopped near Charhi ghati and other passengers of the jeep were told to alight from the jeep, but they were told to remain in the jeep and that they will be reached to their destination. Thereafter, the jeep was taken towards the forest and they were told to remain silent and were threatened of dire consequences. Vehicle was stopped in a lonely place and then driver Rajesh took her to the forest and raped her. She started weeping then she was taken to the house by Rajesh and they were locked in a room and was raped. They remained there for 1012 days and during that period, she was raped by Rajesh and accused Suresh kept an eye on them. PW-5 further stated that her cousin started crying and left taking food then, Rajesh boarded her cousin on a bus to Hazaribag and then she reached home and informed the family members. They remained there for 1012 days and during that period, she was raped by Rajesh and accused Suresh kept an eye on them. PW-5 further stated that her cousin started crying and left taking food then, Rajesh boarded her cousin on a bus to Hazaribag and then she reached home and informed the family members. Subsequently, her father and others came there and recovered her from the room. Thereafter, she was taken to Mandu police station where her statement and the statement of her father was recorded. PW-5 has identified both the accused persons present in the court. 7. PW-1, is the cousin sister of the victim PW-5 and she had accompanied the victim on the day of their alleged kidnapping. PW-1 has reiterated the same as victim PW-5 about the manner of kidnapping in her examination-in-chief. PW-1 further stated that in forest PW-5 was raped by the driver Rajesh Kumar Kuswaha and cleaner teased her. Thereafter, they were taken to the house of Rajesh Kumar Kuswaha and they were locked in a room for 10-12 days and PW-5 was raped for 10-12 days. She started crying then she was left on a bus and then she came to her house and informed the matter to her parents. PW-1 has identified the accused persons present in the court. 8. Other witnesses, PWs. 2, 3 and 4 are the relatives of the victim girl. They have supported the case of prosecution that on 03.04.2006, both sisters had left for Barkagaon and on 15.04.2006 PW-1 came back to her house and narrated the entire episode to them and thereafter, the accused persons were apprehended and PW-5 was recovered from the house of Rajesh Kumar Kuswaha. Accused persons were handed over to Mandu police. They have also admitted that before 17.04.2006, they had not complained about missing of their daughters. 9. PW-6 is the Investigating Officer of this case who was examined U/s 311 Cr.P.C. He has proved the fardbeyan as Ext.-2, formal FIR as Ext.-3 and he recorded the statement of the witnesses and submitted the charge-sheet. Investigating Officer did not mention the place of occurrence in his evidence. ARGUMENTS ON BEHALF OF APPELLANTS:- 10. Mr. Bhaiya Vishwajeet Kumar, the learned counsel for the appellant appearing in Cr. Investigating Officer did not mention the place of occurrence in his evidence. ARGUMENTS ON BEHALF OF APPELLANTS:- 10. Mr. Bhaiya Vishwajeet Kumar, the learned counsel for the appellant appearing in Cr. Appeal (S.J.) No. 1360 of 2008 first and foremost referred to the evidence of the victim or PW-5 and submitted that victim had stated in para-1 that the vehicle in which both the girls were travelling was out of order and therefore, argued that in this situation when the other passengers had left the vehicle but, girls remained sitting or confining themselves in the vehicle is simply incredible and unbelievable. 11. Referring to the evidence of PW-1, who is the cousin sister of PW-5 and allegedly one of the victim girl and was travelling together with the PW-5, learned counsel submitted at para-5 of her evidence, PW-1 has deposed about the recovery of her cousin sister PW-5 but the aspect of the recovery stated by PW-1 has not been stated by the PW-6 Investigating Officer of the case. Learned counsel further submitted that in para-20, PW1 has clearly stated that she was not treated by the doctor and if this is so, then there is no medical report to prove any sexual assault or any kind of molestation or even rape. Referring to the evidence of PW-2 Md. Rizwan Ansari, learned counsel pointed out para-4 of his evidence and submitted that on the 15th of April one of the victim PW-1 had returned alone. Hence, learned counsel has argued that it is apparent that both the girls were missing for some time and PW-1 had returned home alone, so, it is shocking that no FIR was lodged before or immediately after when one of the girl PW-1 had returned home. Learned counsel for the appellant further refers to para-5 and para-6 of the deposition of PW-2 and pointed out that he had gone in search of PW-5 along with PW-1 and PW-1 had recognized the accused persons at the bus stand and hence, learned counsel submitted that it seems that informant side had conducted the investigation on their own. Learned counsel for the appellant further refers to para-5 and para-6 of the deposition of PW-2 and pointed out that he had gone in search of PW-5 along with PW-1 and PW-1 had recognized the accused persons at the bus stand and hence, learned counsel submitted that it seems that informant side had conducted the investigation on their own. Learned counsel then referred to para-16 of the deposition of PW-2 and submitted that informant’s side took the accused person to Mandu police station which is at a distance of about 40 kilometers away from the alleged place of occurrence to proceed with the case or to register the complaint and so, learned counsel argued that there is a mystery behind going so far away to register the case. Learned counsel has also argued that it is apparent from the evidence of PW-2 that he and other villagers had also gone to search and had also recovered the other girl PW-5, but none of the other villagers were examined and this is only so because the case rests on a concocted allegation. 12. Learned counsel for the appellant further referred to the evidence of PW-3 Md. Ramjam, who is the father of PW-1 and submitted from para-1 and para-2 of his evidence that he was searching for his daughter from 04.4.2006. Learned counsel further argued that if this is a case, it is also shocking why no case was registered on 04.4.2006 and this only goes to show that nothing untoward or nothing serious had occurred and that is why no police complaint was made. 13. Learned counsel further submitted that PW-4 Liyakat Ansari has deposed in para-4 that they had themselves gone on search and recovered the girl which means that they themselves investigated the case and then they lodged the FIR. Learned counsel further submitted that this should have been initial complaint and then police should have investigated but, informant’s side were trying to build up a concocted case against the appellants. Learned counsel said that witnesses have not pointed out the name of other villagers involved in the alleged recovery of PW-5 only so because there is no case actually exists against the appellants and entire allegations rest on false accusations. 14. Learned counsel said that witnesses have not pointed out the name of other villagers involved in the alleged recovery of PW-5 only so because there is no case actually exists against the appellants and entire allegations rest on false accusations. 14. Learned counsel for the appellant further referred to the evidence of PW-6 Baharuddin, who is the father of the victim girl and the informant of the case. By referring to the para-1 and para-5 of his evidence, learned counsel for the appellant has submitted that he is actually a hearsay witness therefore, his evidence would not be much reliable. From para-7 of his evidence it appears that informant had not informed about the incidence at the Police station. Learned counsel further referred to para-11 and pointed out that informant party went in search of the girl by a tracker but the driver of the tracker was not examined, therefore, learned counsel submitted that if the driver would have been examined then the truth would have emerged but driver was not examined. Learned counsel, further pointed out para-14 of the evidence of the informant and argued that the police had not gone to the house of Rajesh and hence this is very shoddy investigation because in a case of rape or alleged rape it is surely expected that the police during the course of investigation would go to the place of occurrence but they have not done so which itself goes to prove that the allegations against the appellant is totally false and concocted. 15. Mr. Bhaiya Vishwajeet Kumar, the learned counsel for the appellant further submitted that there is no medical evidence on record to suggest any kind of intercourse with any of the victim, therefore, appellant cannot be held guilty of molestation or rape. Learned counsel further submitted that there is no evidence from any independent witness that she was rescued from the house of the appellant Rajesh. It has also come in evidence that there are several persons residing near the appellant’s house but they have also not been examined as prosecution witnesses or they have not come forward to testify. 16. Learned counsel for the appellant has further submitted that from the conduct of victim’s family also the case is established to be false and concocted. It has also come in evidence that there are several persons residing near the appellant’s house but they have also not been examined as prosecution witnesses or they have not come forward to testify. 16. Learned counsel for the appellant has further submitted that from the conduct of victim’s family also the case is established to be false and concocted. The family of the victim have not said anything in 14 days that girls were missing and has not said anything or lodged any complaint to any sarpanch or mukhiya in the village or locality not even informed the police that girls were missing since 14 days and hence, makes the prosecution witnesses highly incredible and unbelievable. Learned counsel for the appellant further argued that it is common knowledge that if girls do not return home on time then immediately the parents or guardians are upset and anxious and begin searching for the children particularly if they are girl children but here even in 14 days of the alleged missing of the girls no FIR was lodged. Learned counsel has further argued that all the witnesses are related witnesses and, therefore, only on the testimony of the related witnesses the appellant Rajesh Kumar Kuswaha should not be convicted. Learned counsel has further submitted that independent witnesses could have been produced but only family or related witnesses have been examined hence, the evidence against the appellants is highly prejudiced. 17. Learned counsel also argued that the victims were said to have been confined by the appellant but, in the absence of sufficient evidence to prove confinement no offence of confinement of the girls can be made out against the appellant. Learned counsel further argued that the Investigating Officer had not visited the place of occurrence or the forest were alleged rape had been initially committed or even the house of the appellant Rajesh were the victim PW-5 was said to be confined and this suggests that no offence had occurred at all. Molestation of girl or rape or gang-rape are serious offences and it is imperative on the Investigating Officer to visit the place of occurrence to make out the case against accused but it is only there is no factual basis against the appellant and hence, Investigating Officer did not visit the place of occurrence. Molestation of girl or rape or gang-rape are serious offences and it is imperative on the Investigating Officer to visit the place of occurrence to make out the case against accused but it is only there is no factual basis against the appellant and hence, Investigating Officer did not visit the place of occurrence. Learned counsel for the appellant has also submitted that there was 14 days delay in lodging the FIR, which is a large number of days in delay in reporting such heinous offences for which the case against the appellants surely stands doubted and demolished. Learned counsel for the appellant has cited the case of Parvez Akhtar vs. The State of Jharkhand reported in (2011) 4 JLJR 173 and pointed para-4 in which this court noted that the learned trial court had found the victim girl was below 16 years of age at the relevant time but, the prosecution did not produce any documentary evidence in proof of her age and hence, appeal was allowed by this court and hence, learned counsel submitted that appellant in the case in hand also deserves benefit of doubt. Learned counsel has cited judgment of Narendra Kumar vs. State (NCT of Delhi) reported in (2012) 7 SCC 171 delivered by Hon'ble Apex Court and pointed paras-29 and 30 in which Hon'ble Apex court held that in a case of rape, the onus is on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. Hon'ble Apex Court further held that it is not part of the duty of the defence to explain as to how and why in a rape case the victim and other witnesses have falsely implicated the accused. The prosecution case has to stand on its own legs and cannot take support from the weakness of the case of the defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. 18. Mr. Bhola Nath Rajak, the learned amicus curiae has appeared on behalf of the appellant in Cr. Appeal (S.J.) No. 348 of 2010 and argued that the appellant Suresh Kumar Mahto was not present at the scene of occurrence. 18. Mr. Bhola Nath Rajak, the learned amicus curiae has appeared on behalf of the appellant in Cr. Appeal (S.J.) No. 348 of 2010 and argued that the appellant Suresh Kumar Mahto was not present at the scene of occurrence. The learned amicus curiae has further submitted that as per the evidence of PW-5 or the victim girl, she had herself said that the appellant Suresh did nothing therefore, this appellant cannot be an accused or cannot be implicated in this case. Amicus further submitted that other lacuna in the prosecution case is the non-examination of the doctor and also the place of occurrence has also not been indicated or mentioned by the Investigating Officer though case relates to offence under section 376 IPC. Moreover, if the girls were missing for 14 days then why the FIR was not lodged immediately and hence the delay in lodging of FIR is unexplained. It could have been lodged at least even when one of the alleged victims had returned home but for reasons best known to informant it was not lodged even then. The learned Amicus Curiae has also argued that the incident apparently occurred in Ichak however, the FIR was lodged in Mandu on 17th April 2006 and Mandu police station had no proper jurisdiction to have lodged the case and, therefore, whatever investigation they conducted and carried out has no authorization or no legal status or basis. ARGUMENTS ON BEHALF OF STATE:- 19. Mrs. Nehala Sharmin, the learned APP appeared on behalf of the State and submitted that there is not only one victim in this case but there are two victims i.e. PW-1 and PW-5 and both have testified and supported the prosecution case. The learned APP argued that even on the basis of evidence of one witness in the case of sexual assault, conviction can be sustained, but, in the case in hand there are two witnesses who have supported the evidence regarding molestation and sexual assault. Similarly from the evidence it seems that PW-5 is the main victim and she was the one who was gang-raped and PW-1 was also molested, therefore, from the evidences of PW-5 and PW-1 all the offences that have been indicated can be made out. Similarly from the evidence it seems that PW-5 is the main victim and she was the one who was gang-raped and PW-1 was also molested, therefore, from the evidences of PW-5 and PW-1 all the offences that have been indicated can be made out. PW-1 has in her evidence supported that PW-5 had been raped by the appellant Rajesh Kumar Kuswaha and other appellant or the cleaner Suresh Kumar Mahto had molested her. 20. The learned APP has further argued that PW-2, PW-3 and PW4 are not eye-witnesses but they are witnesses on the point of recovery of the victim girl PW-5 from the house of the one of the appellants, namely, Rajesh Kumar Kuswaha. This only helps to confirm that PW-5 was confined in the house of the appellant Rajesh Kumar Kushwaha and earlier PW-1 was also confined. In these circumstances the appellant, namely, Suresh Kumar Mahto was also a party to all the illegal activities. 21. The learned APP has further argued that PW-4 is actually an independent witness and, therefore, it cannot be said that there is no independent witness at the trial. PW-4 has deposed that he knew both the victims by name and he has supported the recovery of one of the victims from the house of one of the appellants. This witness has also stated that the victim was minor. 22. Regarding delay of 14 days in lodging the FIR, the learned APP has argued that both the girls had actually gone to visit the house of their fufi (aunt) which is away from their home, hence, the father of the girl or the informant did not think that the girls were missing. Informant was under the impression that they had gone to Barkagaon to their aunt’s place. It is only after one of the victims that is PW-1 had returned then they came to know that something was amiss. Thereafter, they started searching for PW-5 and then in due time, they were able to recover PW-5 from one of the appellant’s house and then they had duly lodged the FIR. The learned APP has also submitted that only because of the latches of the Investigating Officer the entire prosecution case cannot be thrown away. Particularly, when there are other evidences to support the prosecution case and also full reliance can be placed on the evidence of victim girls. The learned APP has also submitted that only because of the latches of the Investigating Officer the entire prosecution case cannot be thrown away. Particularly, when there are other evidences to support the prosecution case and also full reliance can be placed on the evidence of victim girls. Both PW-5, who had been raped as well as PW-1, who was molested and all these crimes against the two girls were committed under the watchful eye of both the appellants and therefore, they are fully guilty or accountable for the offences under sections 363, 366A and 376 (2) (g) of the Indian Penal Code. FINDINGS 23. Having heard Mr. Bhola Nath Rajak, the learned Amicus Curiae, who appeared on behalf of the appellant in Cr. Appeal (S.J.) No. 348 of 2010 and Mr. Bhaiya Vishwajeet Kumar, the learned counsel who appeared on behalf of the appellant in Cr. Appeal (S.J.) No. 1360 of 2008 as well as Mrs. Nehala Sharmin, the learned APP appeared for the State in both cases and having gone through the records of the cases and evidences, it is seen that a number of reasons have been given by the learned counsels for appellants to discredit the case of the prosecution and over turn conviction and sentence. Whether this can demolish the entire evidence led by the prosecution and particularly the evidences of the two victim girls PW-1 and PW-5 and, hence, the convictions and sentences of the appellants be overturned is what needs to be answered. 24. A number of reasons have been given by the appellants’ counsels in the defence of both the appellants. First of all appellants counsel raised the issue that there was an inordinate delay in lodging of the FIR. Another point raised is that immediately informant had come to know from one of the victims PW-1 about what had transpired, informant had himself done self-investigation which is not proper and the matter should have been immediately reported to the police. The argument has also sought to be raised that the FIR should have been registered at Ichak Police station and not at Mandu Police station. Further, there are lack of independent witnesses and conviction is based essentially on the evidences of two victim girls. The argument has also sought to be raised that the FIR should have been registered at Ichak Police station and not at Mandu Police station. Further, there are lack of independent witnesses and conviction is based essentially on the evidences of two victim girls. The house of the appellant Rajesh Kumar Kuswaha wherein both the victims were confined and one of the victim PW-5 was confined there for more than 10 days was not visited by the Investigating Officer during the investigation. The learned Amicus Curiae has raised an argument that appellant Suresh Kumar Mahto was actually not present there during the occurrence and in fact it is another Suresh Kumar Mahto and he does not even know the khalasi. The other argument which he has put forth, is that in any way appellant Suresh Kumar Mahto, as per the evidence of both the victims PW-1 and PW-5 has not committed rape, therefore, he is not liable for conviction. Also another argument raised by both the appellants’ counsels is that neither medical examination report of PW-5 was exhibited nor doctor was examined and without doctor’s evidence or medical evidence regarding rape, no conviction can follow. 25. All these points that have been raised has to be seen by this Court and weighed against the evidence of the victims. The point regarding inordinate delay in lodging FIR is explained by the fact that on 03.04.2006, both the girls had actually set out for their aunt’s (fufi’s) home and when they were away it was not known to their families that they had been kidnaped or abducted and sexually assaulted. It is reveled to them only when one of the victims PW-1 returned home and informs about the entire incident and also that one of the victims PW-5 is still with the appellants. Regarding self-investigation done by the informant, this is not a very good point in the sense that out of concern anyone in such situation would make some searching and probing and, therefore, this is not an authoritative investigation and that was left finally to the police after the case was lodged. Regarding the case being wrongly lodged at Mandu police station instead of Ichak Police station, it is seen that the victims and their family reside in Mandu and the journey of the girls had begun from Mandu itself. Regarding the case being wrongly lodged at Mandu police station instead of Ichak Police station, it is seen that the victims and their family reside in Mandu and the journey of the girls had begun from Mandu itself. Therefore, there is no reason why the police from Mandu could not take up the case. Regarding the lack of examination of independent witnesses, this is not a very good argument in the sense that in cases of sexual assault and rape, it is well known that it is the testimony of the victims that is very relevant and here apart from the testimony of these two victim girls, the testimony of PW-2, PW-3 and PW-4, who are also witnesses on the point of recovery of victim PW-5 which would go towards corroborating the kidnaping or abduction and it would help in also supporting the allegations that have been made by the victims regarding sexual assault. 26. When the recovery was made from the house of the appellant Rajesh Kumar Kuswaha himself then that the place of occurrence was not visited, may not be a very good argument. It can be said that the place where the vehicle was initially boarded may not have been visited and that can only be considered minor lapses in the investigation. 27. Regarding the argument placed by Mr. Bhola Nath Rajak, Amicus Curiae that this appellant Suresh Kumar Mahto was not at all present in the place of occurrence and it was rather another person who was the khalasi has no force as both the victims PW-1 and PW-5 had identified both the appellants including Suresh Kumar Mahto in the court during trial. 28. This is a case in which there are two victims and not only one, therefore, the defence or the appellant’s counsels would have to discredit the evidence of both these victims. It is well established that in criminal cases of sexual assault and particularly rape, the evidence of victim caries tremendous amount of weight and unless they are not believable and discredited, the evidence of such victims, can lead to the conviction of the accused persons. It is well established that in criminal cases of sexual assault and particularly rape, the evidence of victim caries tremendous amount of weight and unless they are not believable and discredited, the evidence of such victims, can lead to the conviction of the accused persons. In this case the allegation of kidnaping, rape or gang rape and procuration of minor girl for sexual purpose is also supported by the crucial evidence of recovery or one of the victims PW-5 from the house of appellant Rajesh Kumar Kuswaha, which is a tremendously incriminating circumstance. This goes towards adding to the allegations or rather the evidence which one of the victims PW-1 has given and that lead towards the recovery of the other victim girl PW-5 from the house of the appellant Rajesh Kumkar Kuswaha. Though, in the FIR it is indicated that both the girls had been raped, in the evidences, both the victim girls PW-1 and PW-5 have deposed that PW-5 was raped by appellant Rajesh Kuamar Kuswaha and both the victim girls have not in their evidence implicated the appellant Suresh Kumar Mahto for rape. There is a categorical denial or non-mentioning of Suresh Kumar Mahto to have committed rape and allows him to escape the offence of gang-rape. However, one of the victim i.e., PW-1 has deposed that she was only molested by the appellant Suresh Kumar Mahto. Therefore, prosecution has failed to prove the charge against the appellant Suresh Kumar Mahto under section 376(2)(g) of IPC beyond reasonable doubt, but, he is now convicted under section 354 of IPC. But, appellant Rajesh Kumar Kuswaha is found guilty of committing rape of PW-5 and hence, he is convicted under section 376 of IPC. Further, on the basis of evidence of both the victim girls PW-1 and PW-5, it will be difficult to let both the appellants escape the conviction under sections 363 and 366A of IPC. 29. Accordingly, impugned judgment of conviction dated 27.08.2008 and order of sentence dated 01.09.2008 passed by the learned 2nd Additional Session Judge, Hazaribagh in Session Trail no. 460 of 2006 so, far as it relates conviction of both the appellants under section 363 and 366A of IPC requires no interference and is sustained and upheld. Appellant Suresh Kumar Mahto is acquitted from the charge under section 376(2)(g) and his conviction is now modified to one under section 354 of IPC. 460 of 2006 so, far as it relates conviction of both the appellants under section 363 and 366A of IPC requires no interference and is sustained and upheld. Appellant Suresh Kumar Mahto is acquitted from the charge under section 376(2)(g) and his conviction is now modified to one under section 354 of IPC. Conviction of the appellant Rajesh Kumar Mahto under section 376(2)(g) of IPC is modified to section 376 of IPC. 30. Regarding sentence of both the appellants, from the record it appears that appellant Suresh Kumar Mahto has undergone about 4 years and 1 month in custody and appellant Rajesh Kumar Kuswaha has undergone about 3 years and 11 months in custody. So, far as conviction of both the appellants under section 363 of the Indian Penal Code is concerned, both the appellants were sentenced to 3 years RI and thus as per record they have already undergone the aforesaid sentence. Further, both the appellants were sentenced to seven years RI under sections 366A of the Indian Penal Code and therefore, both the appellants will have to undergo the remaining part of their sentence. Regarding conviction of the appellant Suresh Kumar Mahto under Section 354 of the Indian Penal Code, I impose a sentence of three years. Keeping in mind that appellant Suresh Kumar Mahto has already served the sentence of around four years, within this served period, the sentence under Section 354 IPC will be considered as sentence sufficiently served. Regarding sentence of the appellant Rajesh Kumar Kuswaha under section 376 of the Indian Penal Code, learned trial court has already sentenced him for 7 years R.I. for his conviction under section 376(2)(g) of IPC and now for his modified conviction under section 376 of the Indian Penal Code, his sentence remains the same as imposed by the learned trial court under section 376(2)(g) of IPC, thus appellant Rajesh Kumar Kuswaha will undergo seven years RI for his conviction under section 376 of IPC. 31. In the result, now appellant Suresh Kumar Mahto will undergo his remaining part of his sentence for his conviction under section 366A of IPC and appellant Rajesh Kumar Kuswaha will undergo his remaining part of his sentence for his conviction under section 366A and 376 of IPC. The sentence will run concurrently and period already undergone shall be setoff. Bail bonds of both the appellants stand cancelled. 32. The sentence will run concurrently and period already undergone shall be setoff. Bail bonds of both the appellants stand cancelled. 32. This court is thankful to Mr. Bhola Nath Rajak, Amicus Curaie for his assistance rendered to this court. Member Secretary, JHALSA is directed to pay remuneration to the learned Amicus Curaie as per rules. 33. Accordingly, both criminal appeals are dismissed with the above modifications in the conviction and sentence.