JUDGMENT : SANJAY K. AGRAWAL, J. 1. Since these two criminal appeals have arisen out of the same judgment dated 6.2.2016 passed by First Additional Sessions Judge, District Balod in Sessions Trial No. 2300078/2015 and the question of law and fact also being similar in these two appeals, they have been clubbed together, heard together and are being disposed of by this common judgment. 2. The sole appellant in Criminal Appeal No. 270/2016 namely Devkaran (A-2) so also the sole appellant in Criminal Appeal No. 1603/2017 namely Arjun Halba (A-1) both have preferred these two appeals, under Section 374 (2) of Cr.P.C. calling in question the validity, legality and correctness of the impugned judgment dated 6.2.2016 whereby both of them have been convicted for the offence punishable under Section 376(2)(g) of IPC and sentenced to undergo Life Imprisonment to pay fine of Rs.1000/- each and in default whereof, to undergo additional rigorous imprisonment for one month each. 3. Case of the prosecution, in nutshell, is that on 6.7.2015 at about 8:15 p.m. at village Sambalpur under Police Station Daundilohara, District Balod, in the field near the shrine of Bharat Pujari, the two appellants herein i.e. A-1 Arjun, A-2 Devkaran and the other co-accused Deman Singh (now acquitted) had assaulted the victim (PW-11), a deaf and dumb girl with mental disability, and also committed sexual intercourse with her; thereby committed the offence. 4. Further case of the prosecution is that on the date of incident i.e. on 6.7.2015, Idhan Bhuarya (not examined), nephew of complainant Chander Bai (PW-1) who is the mother of victim (PW-11), at about 10:00 p.m. reached to her house and informed her that three persons have committed gang rape with victim at Village Sambalpur. Thereafter, when the complainant (PW-1) reached Village Sambalpur, Uttam Kumar Sahu (PW-7), Loman Singh (PW-8) and Radheysham (PW-9) told her that at about 7:30 p.m. one boy had taken the victim towards the field and after about half an hour when they went to the spot they saw two boys running away and only A-1 Arjun was standing there and victim was lying there on the ground without her clothes and her hands were tied with salwar and there was bleeding in her forehead. On being asked by them, A-1 Arjun had told them the name of other co-accused persons being A-2 Devkaran and Deman Singh and the victim had also told them by sign of the appellants being the authors of crime. 5. Subsequently, on the complaint lodged by Chander Bai (PW-1), FIR was registered against the accused persons vide Exhibit P-1. The victim was medically examined by Dr. Smt. Shashi Claudius (PW-2) who gave her report vide Exhibit P-6 in which certain external and internal injuries were found on the body of victim and she was also found to be subjected to recent sexual intercourse. Nazri Naksha (Exhibit P-16) was prepared. Vide Exhibit P-22, seizure of two bicycles, one slipper, one plastic spectacle, some undergarments and clothes were made. Vaginal slide of victim and other seized articles were sent for chemical analysis to the FSL and vide FSL report (Exhibit P-41), blood and human sperms were found in slide (Article ‘E’) of victim and on Articles ‘A’, ‘B’, ‘C’ (clothes of victim) & Article ‘F2’ (undergarment of A-1 Arjun) human blood was found. Statements of the witnesses were also recorded under Section 161 of Cr.P.C. and the accused persons were arrested. 6. After completion of investigation, A-1 Arjun, A-2 Devkaran and the other co-accused person Deman Singh were charge-sheeted for the offence punishable under Sections 376(2)(g) and 323 of IPC before the concerned jurisdictional Criminal Court from where the case was committed to the Court of Sessions and after committal, the matter was received by the Court of First Additional Sessions Judge, Balod for trial and its disposal in accordance with law, in which the accused persons abjured their guilt, pleaded innocence and claimed to be tried. 7. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 12 witnesses and exhibited 41 documents. In defence, neither any witness has been examined nor any document has been exhibited. Statements of the appellants were recorded under Section 313 of Cr.P.C. in which they denied circumstances appearing against them in prosecution case, pleaded innocence and false implication. 8. In defence, neither any witness has been examined nor any document has been exhibited. Statements of the appellants were recorded under Section 313 of Cr.P.C. in which they denied circumstances appearing against them in prosecution case, pleaded innocence and false implication. 8. After conclusion of the trial, the trial Court, by impugned judgment dated 6.2.2016, on appreciation of oral and documentary evidence available on record, while acquitting the other co-accused person Deman Singh on the basis of benefit of doubt, convicted the two appellants herein i.e. A-1 Arjun and A-2 Devkaran for the offence punishable under Section 376(2)(g) of IPC and sentenced them as mentioned in Para-1 of this judgment. Feeling aggrieved and dissatisfied by the said judgment of conviction and order of sentence, the present two appeals have been preferred by A-1 Arjun and A-2 Devkaran separately. 9. Mr. Mayank Chandrakar, learned counsel appearing for the appellants, would submit that the two appellants herein have been falsely implicated in the crime in question and they have been convicted by recording a finding which is contrary and perverse to the record. He would further submit that the testimonies of Uttam Kumar Sahu (PW-7), Loman Singh (PW-8) and Radheyshyam (PW-9) are not reliable and the victim (PW-11) has also not stated anything about the alleged incident to them or even named the appellants as assailants. He would also submit that the said witnesses Uttam Kumar Sahu (PW-7), Loman Singh (PW-8) and Radheyshyam (PW-9) including mother (PW-1) and maternal uncle (PW-10) of victim all have turned hostile and have not supported the case of prosecution at all and even the prosecution has failed to prove its case on the basis of medical evidence. Lastly, he would submit that the appellants are in jail since 8.7.2015 and since the prosecution has failed to bring home the said offence beyond reasonable doubt, appeal deserves to be allowed by acquitting them on the basis of benefit of doubt. 10. On the other hand, Mr. Amrito Das, learned Additional Advocate General, would support the impugned judgment and submit that prosecution has been able to bring home the offence beyond reasonable doubt. He would further submit that on the basis of the statements of Uttam Kumar Sahu (PW-7), Loman Singh (PW-8), Radheyshyam (PW-9) and Dr. 10. On the other hand, Mr. Amrito Das, learned Additional Advocate General, would support the impugned judgment and submit that prosecution has been able to bring home the offence beyond reasonable doubt. He would further submit that on the basis of the statements of Uttam Kumar Sahu (PW-7), Loman Singh (PW-8), Radheyshyam (PW-9) and Dr. Shashi Claudius (PW-2) who prepared the medical report (Exhibit P-6) and also on the basis of FSL report (Exhibit P-41), the trial Court has rightly convicted the appellants for the said offence and, as such, the appeal deserves to be dismissed. 11. We have heard learned counsels for parties, considered their rival submissions made herein-above and have also gone through the records with utmost circumspection. 12. Section 376 of IPC has been amendment by the Act 13 of 2013 with effect from 3.2.2013 and, prior to its amendment, Section 376(2(g) under which the punishment prescribed for gang rape was as under: “376. Punishment for rape: (1) *** *** *** (2) Whoever: *** *** *** (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” whether called an orphanage or a home for neglected woman or children or a widows’ home or by any other name, which is established and maintained for the reception and care of woman 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.” 13. The aforementioned provision of gang rape under Section 376(2)(g) was amended with effect from 3.2.2013 and the same has been incorporated as Section 376D which reads as: “376D. The aforementioned provision of gang rape under Section 376(2)(g) was amended with effect from 3.2.2013 and the same has been incorporated as Section 376D which reads as: “376D. Gang Rape - Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person’s natural life, and with fine: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim. Provided further that any fine imposed under this section shall be paid to the victim.” 14. As such, to bring the offence of rape within the purview of Section 376(2)(g) [now Section 376D with effect from 3.2.2013], the prosecution must prove: “(i) that more than one person had acted in concert with the common intention to commit rape on the victim. (ii) that more that one accused had acted in concert in commission of crime of rape with pre-arranged plan, prior meeting of mind and with element of participation in action. Common intention would be action in consort in pre-arranged plan or a plan formed suddenly at the time of commission of offence which is reflected by element of participation in action or by the proof of the fact of inaction when the action would be necessary. The prosecution would be required to prove pre-meeting of mind of accused persons prior to commission of offence of rape by substantial evidence or by circumstantial evidence. (iii) that in furtherance of such common intention one or more persons of the group actually committed offence of rape on victim or victims. Prosecution is not required to prove actual commission of rape by each and every accused forming group.” [See Pradeep Kumar vs. Union Administration, Chandigarh, (2006) 10 SCC 608 ] 15. Further, in Pradeep Kumar (supra), their Lordship of the Supreme Court following the principles of law laid down in Ashok Kumar vs. State of Haryana, (2003) 2 SCC 143 while dealing with offence under Section 376(2)(g) of IPC read with the Explanation, have held as under in Para 7: “7. Further, in Pradeep Kumar (supra), their Lordship of the Supreme Court following the principles of law laid down in Ashok Kumar vs. State of Haryana, (2003) 2 SCC 143 while dealing with offence under Section 376(2)(g) of IPC read with the Explanation, have held as under in Para 7: “7. In Ashok Kumar vs. State of Haryana (supra) this Court observed: (SCC p. 146, Para 8) “8....In order to establish an offence under Section 376(2)(g) IPC, read with Explanation I thereto, the prosecution must adduce evidence to indicate that more than one accused had acted in concert and in such an event, if rape had been committed by even one, all the accused will be guilty irrespective of the fact that she had been raped by one or more of them and it is not necessary for the prosecution to adduce evidence of a completed act of rape by each one of the accused. In other words, this provision embodies a principle of joint liability and the essence of that liability is the existence of common intention; that common intention presupposes prior concert which may be determined from the conduct of offenders revealed during the course of action and it could arise and be formed suddenly, but, there must be meeting of minds. It is not enough to have the same intention independently of each of the offenders. In such cases, there must be criminal sharing marking out a certain measure of jointness in the commission of offence.” 16. Subsequently, in the matter of Rai Sandeep alias Deepu vs. State (NCT of Delhi) with Hari Singh vs. State (NCT of Delhi), (2012) 8 SCC 21 the principle of law laid down in State of H.P. vs. Asha Ram, (2005) 13 SCC 76 that conviction can be based on the testimony of prosecutrix alone unless there are compelling reasons for seeking corroboration, has been followed with approval in Para-27 as under: “27. In the decision report as State of H.P. vs. Asha Ram (supra), this Court highlighted the importance to be given to the testimony of the prosecutrix as under in Para 5: (SCC p. 770) “5......It is now well-settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital, unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is also a well-settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case.” (Emphasis added) 17. Now, ‘rape’ has been defined in Section 375 of IPC as under: “375. Rape - A man is said to commit “rape” if he: (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person. (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person. (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person. (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven 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. 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 eighteen years of age. Seventhly - When she is unable to communicate consent. Explanation 1 - For the purposes of this section, “vagina” shall also include labia majora. Explanation 2 - Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1 - A medical procedure or intervention shall not constitute rape. Exception 2 - Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” 18. Primarily, to bring home the offence of ‘gang rape’, noticing the definition of ‘rape’ as defined under Section 375 of IPC and the date of offence in the instant case being that of 6.7.2015 and further Section 376D of IPC also having already been incorporated with effect from 3.2.2013, the trial Court ought to have framed the charge for the offence punishable under Section 376D instead of 376(2)g) of IPC and thus it would be read as charge under Section 376D of IPC. 19. 19. Case of the prosecution is that the three accused persons i.e. A-1 Arjun, A-2 Devkaran and the acquitted co-accused Deman Singh committed gang rape with the victim (PW-11) being a deaf and dumb girl with mental disability and PW-7 Uttam Kumar Sahu, PW-8 Loman Singh and PW-9 Radheshyam while returning back from Village Lohara heard the cry of victim and went into the spot where they saw the victim without her clothes and A-1 Arjun and A-2 Devkaran were present therein and thereafter they informed the matter to the victim’s maternal uncle Gambhir Bhuarya (PW-10) and subsequently FIR came to be lodged and wheels of investigation started running. 20. The trial Court, after appreciating the oral and documentary evidence available on record, proceeded to convict A-1 Arjun & A-2 Devkaran for the offence punishable under Section 376(2)(g) of IPC and acquitted the other co-accused Deman Singh finding no offence against him. The finding of the trial Court is primarily based on the statements of PW-7 Uttam Kumar Sahu, PW-8 Loman Singh and PW-9 Radheshyam that all three have seen the two appellants i.e. A-1 Arjun and A-2 Devkaran present on the spot and nearby the victim was also seen lying on the ground without her clothes. Furthermore, vide MLC report (Exhibit P-6) certain external and internal injuries were found on the body of the victim and also vide FSL report (Exhibit P-41), in slide (Article ‘E’) of victim, blood and human sperms were found and in the undergarments (Article ‘F1’ & ‘F2’) of A-1 Arjun, blood has been found. 21. Now, we will consider the correctness of the finding so recorded by the trial Court in the light of evidence available on record: Ocular Evidence: 22. The incident in the instant case is said to have occurred on 6.7.2015 at about 8:15 p.m. in the night at Village Sambalpur in the field near the shrine of Bharat Pujari and at that time PW-7 Uttam Kumar Sahu, PW-8 Loman Singh and PW-9 Radheshyam all three were returning from Village Lohara and they heard the cry of victim. The incident in the instant case is said to have occurred on 6.7.2015 at about 8:15 p.m. in the night at Village Sambalpur in the field near the shrine of Bharat Pujari and at that time PW-7 Uttam Kumar Sahu, PW-8 Loman Singh and PW-9 Radheshyam all three were returning from Village Lohara and they heard the cry of victim. The place of incident was 1 kilometer inside from the main road and all the three witness reached there and, as per the prosecution case, they found A-1 Arjun & A-2 Devkaran present there and at that time there was darkness as it was about 8:15 p.m., as stated by all the three witnesses. However, all the three witnesses i.e. PW-7 Uttam Kumar Sahu, PW-8 Loman Singh and PW-9 Radheshyam, have made a slightly different version. 23. PW-7 Uttam Kumar Sahu, firstly, has stated that hearing the cry of victim they went to the place of incident from the main road and found the victim lying there on the ground without her clothes and her hands were tied and at that time A-1 Arjun & A-2 Devkaram were also present at the spot. However, in Para-3, he has stated that A-1 Arjun was also undressed and was closing the zip of his pants. At this stage, PW-7 was declared hostile. However, in Para-7 of his cross-examination, he had admitted that in the place of incident there was no light, it was fully dark and the place of incident was near the shrine of Bharat Pujari one kilometer inside from the main road. He has further admitted that the fact of A-1 Arjun was undressed and was closing the zip of his pants has been stated first time by him in the Court. He has also admitted that the victim had not stated anything to them about the incident. 24. Likewise, PW-8 Loman singh, though has made a similar statement, but he has stated that at the time of incident only A-1 Arjun was present there at the spot and he was undressed and was closing the zip of his pants and the victim was also fully undressed. He has further stated that A-2 Devkaran had come to the spot on being called by A-1 Arjun. He has refuted the fact of any recovery made. At this juncture, he has also been declared hostile. He has further stated that A-2 Devkaran had come to the spot on being called by A-1 Arjun. He has refuted the fact of any recovery made. At this juncture, he has also been declared hostile. However, in Para-7 of his cross-examination, he has also admitted the fact that at the place of incident there was darkness, there was no electric pole and it was rainy season being the month of July. Further, he has admitted that the fact that he does not know as to whom the two bicycles, which were seized in his presence vide Exhibit P-22, belonged to and who had ridden them. In Para-11 also, he has categorically maintained that at the place of incident only A-1 Arjun was present. He has further admitted the fact that they did not take A-1 Arjun to police station and has also expressed his inability to tell as to whom the seized bicycles as also the slipper belonged to. In addition, he has admitted the fact that he did not know as to what incident had occurred with the victim. 25. Similarly, PW-9 Radheshyam has also stated that at the place of incident A-1 Arjun was found to be without clothes and he was closing the zip of his pants and A-2 Devkaran was also present there. He was also declared hostile. However, in his cross-examination, he has also categorically admitted the fact that victim did not tell them anything about the incident. 26. As such, all the three witnesses i.e. Uttam Kumar Sahu (PW-7), Loman Singh (PW-8) and Radheshyam (PW-9), have not supported the case and have turned hostile. However, from the statements of these witnesses, the following facts are explicitly clear: (i) The place of incident was one kilometer inside from the main road and Uttam Kumar Sahu (PW-7), Loman Singh (PW-8) & Radheshyam (PW-9) were travelling from the main road and from the distance of one kilometer they are said to have heard the cry of victim and went to spot and noticed the condition of victim and found A-1 Arjun closing the zip of his pant. (ii) According to Uttam Kumar Sahu (PW-7) and Loman Singh (PW-8), the place of incident was enveloped with darkness and it was rainy season being the month of July. Further, according to PW-8 Loman Singh, only A-1 Arjun was there and A-2 Devkaran was not present there. (ii) According to Uttam Kumar Sahu (PW-7) and Loman Singh (PW-8), the place of incident was enveloped with darkness and it was rainy season being the month of July. Further, according to PW-8 Loman Singh, only A-1 Arjun was there and A-2 Devkaran was not present there. (iii) Further, though two bicycles and slipper were seized in presence of PW-8 Loman Singh vide Exhibit P-22, but he could not tell before the Court as to whom the slipper belonged and even the ownership of the bicycles being that of A-1 Arjun & A-2 Devkaran could not be established. PW-8 Loman Singh has also clearly maintained that only A-1 Arjun was present at the place of incident but A-2 Devkaran was not present and A-2 Devkaran came to the spot only after being called by A-1 Arjun. All the three witnesses have categorically stated that the victim did not tell them anything about the incident. 27. Thus, from the statements of Uttam Kumar Sahu (PW-7), Loman Singh (PW-8) and Radheshyam (PW-9), it is firmly established that the place of incident was 1 kilometer inside from the main road from where they were returning at the time of incident. It was quite dark there at the spot. Though all three witnesses had reached the spot, but the victim did not tell anything about the incident to none of them. Further, according to all the three witnesses, A-1 Arjun was present at the spot but they did not catch hold of him and take him to police station. However, as per PW-8 Loman Singh, only A-1 Arjun was present at the spot. The reason for not catching hold of A-1 Arjun & A-2 Devkaran and also not taking them to police station by these witnesses is presumably for the fact that the victim (PW-11) did not tell them that A-1 Arjun & A-2 Devkaran had committed sexual intercourse with her and/or may be on account of the victim (PW-11) being a deaf and dumb girl with mental disability and she being not capable to communicate herself properly. 28. Furthermore, though there were two bicycles found at the place of incident and seized vide Exhibit P-22 in presence of PW-8 Loman Singh, but the ownership of the said bicycles being that of A-1 Arjun & A-2 Devkaran has not been established. 28. Furthermore, though there were two bicycles found at the place of incident and seized vide Exhibit P-22 in presence of PW-8 Loman Singh, but the ownership of the said bicycles being that of A-1 Arjun & A-2 Devkaran has not been established. Similarly, the slipper which was also seized vide Exhibit P-22 has not been found proved to have belonged to any of the appellants or the said slipper was of such a unique quality and style that it was not easily available in the market. 29. In addition, Gambhir Bhuarya (PW-10), maternal uncle of victim, has also not supported the case of prosecution and has turned hostile. He has only stated that the victim was brought to Sambalpur by Loman Singh (PW-8) and Radheshyam (PW-9). He has further stated that he does not remember as to whom the two bicycles belonged. Further, he has admitted the fact that the place of incident was covered with darkness and he had reached the spot along with Radheshyam (PW-9) by using the torch of his mobile phone and that he had not seen the incident. 30. The victim has also been examined as PW-11. Though the statement of victim was recorded with the help and assistance of Smt. Shanta N. Acharya, a Mook-Badhir Trainer, but the victim could not tell anything and therefore her version could not be brought on record. Thus, the entire case is based on the evidence of Uttam Kumar Sahu (PW-7), Loman Singh (PW-8), Radheshyam (PW-9) and Chander Bai (PW-1), mother of victim. However, Chander Bai (PW-1) has also been declared hostile. She has only stated that her daughter, the victim, is a deaf and dumb girl with mental disability and that, on being informed by her nephew Idhan about the incident, she came to police station along with her nephew Idhan and brother Gambhir Bhuarya (PW-10). 31. The victim (PW-11) was medically examined by Dr. Smt. Shashi Claudius (PW-2) who found the following injuries on the body of victim vide Exhibit P-6: External injuries: 1. abrasion of brown colour measuring 3 cm x 1 mm x 1mm on the left side of neck which was inflicted with hard and blunt object within 12 to 24 hours. 2. contusion of violet colour measuring 10 cm x 5 cm x 1 mm on left scapula. 3. abrasion of brown colour measuring 3 cm x 1 mm x 1mm on the left side of neck which was inflicted with hard and blunt object within 12 to 24 hours. 2. contusion of violet colour measuring 10 cm x 5 cm x 1 mm on left scapula. 3. contusion of violet colour measuring 10 cm x 5 cm x 1 mm on right scapula inflicted with hard and blunt object within 12 to 24 hours. 4. on stitched wound on forehead and blood over face and scalp hair. Internal injuries: 1. Blood was found on the medial side of thighs and public hairs. External genitalia was fully grown. Labia majora and minora was tender red colour, swollen, blood was present on them. Hymen is torn. 2. abrasion of ½ cm x 1 mm x 1 mm extending outside at 6 O’clock position at opening of vagina at hymen, bleeds on touch, caused by hard and blunt object. 3. abrasion of ½ cm x 2 mm x 1mm present on hymen at 9 O’clock position being fresh red colour tender and bleeds on touch. 4. blood was seen coming out from vagina. 5. vaginal opening was admitting one finger easily and there was pain on putting two fingers in vagina and it was red, swollen and full of blood and on cleaning the blood, menstrual blood was seen coming out from cervical opening. Cervix and uterus were found normal. 32. The FSL report is Exhibit P-41 which shows that in the slide (Article ‘E’) of the victim, blood as well as human sperms were found. 33. Now, the question would be whether the two appellants herein i.e. A-1 Arjun & A-2 Devkaran can be convicted on the basis of aforesaid piece of evidence available on record, coupled with the testimonies of Uttam Kumar Sahu (PW-7), Loman Singh (PW-8) and Radheshyam (PW-9) followed by medical evidence and FSL report? 34. First of all, it is evidently clear that prosecution has not been able to establish the fact that the victim (PW-11) has been subjected to rape, as defined under Section 375 of IPC. 34. First of all, it is evidently clear that prosecution has not been able to establish the fact that the victim (PW-11) has been subjected to rape, as defined under Section 375 of IPC. The place of incident was one kilometer inside from the main road which was a field near the shrine of Bharat Pujari and on the date of incident i.e. on 6.7.2015, it was late evening being 8:15 p.m. and also being the month of July it was covered with darkness as stated by Uttam Kumar Sahu (PW-7) and Loman Singh (PW-8) and also by Gambhir Bhuarya (PW-10). Since the distance between the main road from where Uttam Kumar Sahu (PW-7), Loman Singh (PW-8) and Radheshyam (PW-9) were returning and the place where the incident is said to have occurred was one kilometer, as stated by Radheshyam (PW-9), it was difficult to hear from the road the voice of cry and shout. Furthermore, the presence of A-2 Devkaran is not clearly established as Loman Singh (PW-8) has clearly stated that only A-1 Arjun was present on the spot and A-2 Devkaran had reached after being called by A-1 Arjun and, in his cross-examination, PW-8 has reaffirmed that A-1 Arjun was present there on the spot but not A-2 Devkaran. 35. Moreover, there were two bicycles seized from the spot in presence of Loman Singh (PW-8) vide Exhibit P-22. However, it has not been proved on record that the two bicycles seized were belonged to the two appellants herein which could have established the chain of circumstances that they were present on the spot. Uttam Kumar Sahu (PW-7) has stated that the victim’s hands were tied by salwar but the same has not been seized and brought on record. 36. The fact remains that to prove the offence of rape as defined under Section 375 of IPC, neither Uttam Kumar Sahu (PW-7), Loman Singh (PW-8) and Radheshyam (PW-9) have stated specifically that they have seen the two appellants herein sexually assaulting the victim. They have only seen the victim without any clothes and A-1 Arjun closing the zip of his pants, which was not there in the statement of Uttam Kumar Singh (PW-7) recorded under Section 161 of Cr.P.C. (Exhibit P-21) when compared to his statement recorded before the Court. They have only seen the victim without any clothes and A-1 Arjun closing the zip of his pants, which was not there in the statement of Uttam Kumar Singh (PW-7) recorded under Section 161 of Cr.P.C. (Exhibit P-21) when compared to his statement recorded before the Court. As such, though presence of A-1 Arjun is stated by Uttam Kumar Sahu (PW-7), Loman Singh (PW-8) and Radheshyam (PW-9), but the three witnesses have admittedly did not catch hold of A-1 Arjun and did not even take him to police station for the reasons best known to the prosecution, otherwise there was no reason for the three witnesses to catch hold of the accused persons and bring them to police station and to handover them to police and it was simply because of the reason that the victim had not told them anything about the incident and the appellants herein being the authors of crime, which Uttam Kumar Sahu (PW-7), Loman Singh (PW-8) and Radheshyam (PW-9) have clearly stated in their statements made before the Court. Therefore, merely on the basis of the fact that the victim was found undressed and A-1 Arjun was present on the spot and A-2 Devkaran reached there after he was called by A-1 Arjun, it would not be safe to conclude that the two appellants herein have committed the offence under Section 376D of IPC. 37. It would be appropriate at this juncture to notice the Blackstone’s Formulation which the English jurist William Blackstone in his seminal work ‘Commentaries on the Laws of England’ has expressed i.e. the idea that “It is better that ten guilty persons escape than that one innocent suffer.” The said idea was popularly known as “Blackstone’s ratio” and it was published in the 1760s. 38. The Supreme Court in the matter of Manak Chand @ Mani vs. State of Haryana, 2023 INSC 959 has followed the “Blackstone’s ratio” with approval in Para-7 which reads as under: “7......The evidence, as to the age or even rape has not been examined properly by the Trial Court as well as the High Court. Courts must examine each evidence with open mind dispassionately as an accused is to be presumbed innocent till proved guilty. Courts must examine each evidence with open mind dispassionately as an accused is to be presumbed innocent till proved guilty. In our adversarial system of criminal jurisprudence, the guiding principle shall always be the Blackstone’s ratio which holds that it is better that ten guilty persons escape than one innocent be punished.” 39. Similarly, the Supreme Court in his famous and celebrated judgment rendered in the matter of Sharad Birhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 has held that it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions. 40. In that view of the matter, on the basis of testimonies of Uttam Kumar Sahu (PW-7), Loman Singh (PW-8) and Radheshyam (PW-9) of they having seen A-1 Arjun and the victim at one place which was dark being 8:15 p.m. in the night and being one kilometer inside from the main road and on hearing the cry of victim they reached to the spot and further considering the fact that the ownership of the two bicycles seized has not been established to that of A-1 Arjun & A-2 Devkaran and the victim (PW-11) had not informed them anything about the incident and also considering the fact that the said three witnesses Uttam Kumar Sahu (PW-7), Loman Singh (PW-8) and Radheshyam (PW-9) as well as Chander Bai (PW-1) and Gambhir Bhuarya (PW-10), mother and maternal uncle of victim respectively, all have not supported the case of prosecution and have turned hostile, the act of rape within the purview of Section 375 of IPC is not established. Therefore, it would be absolutely unsafe to maintain the conviction of the two appellants herein i.e. A-1 Arjun and A-2 Devkaran, and that too for the offence of gang rape punishable under Section 376D of IPC. 41. Thus, in view of the discussion made herein above, we are unable to uphold the conviction of the two appellants herein for the offence punishable under Section 376D of IPC, holding them to be entitled for acquittal from the said offence on the basis of benefit of doubt. 42. 41. Thus, in view of the discussion made herein above, we are unable to uphold the conviction of the two appellants herein for the offence punishable under Section 376D of IPC, holding them to be entitled for acquittal from the said offence on the basis of benefit of doubt. 42. Accordingly, the impugned judgment dated 6.2.2016, convicting and sentencing the two appellants herein for the offence punishable under Section 376D of IPC, is hereby set-aside/quashed and they are acquitted from the said offence. Both the appellants are stated to be in jail since 8.7.2015. They be set at liberty forthwith, if not required in any other offence. 43. Consequently, both these criminal appeals are allowed. 44. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and to the Superintendent of Jail where the appellants are presently lodged and suffering their jail sentence, forthwith for necessary information and action, if any.