JUDGMENT : Per Deepak Roshan, J. Since both these appeals arise out of common judgment, with consent of the parties, both are heard together and dispose of by this common judgment. 2. Both these appeals have been preferred by the respective appellants for setting aside the common judgment of conviction dated 11.06.2013 and order of sentence dated 14.06.2013 passed by the learned Sessions Judge, Koderma in Sessions Trial No. 129/12 arising out of Koderma (T) P.S. Case. No. 93/12 corresponding to G.R. No.240/12; whereby the appellants have been found guilty for the offence under Section 376 (2) (g) of I.P.C and have been sentenced to undergo imprisonment for life along with a fine of Rs 3,000/-, and in default of payment of fine, he was further directed to undergo R.I for three months. 2. The prosecution case has been instituted on the basis of the written report of the informant Sarita Kumari alleging therein that on 22.02.12 in the evening hours, she was alone in her house as her father had not returned from the forest. In the meantime, the accused namely Madhawa Kumar and Nanhka Kumar entered into the house of the informant and began to tease her. When the informant protested, the accused Nanhka tied her hands and feet, knocked her down on cot and went outside the house. It has been further alleged that the accused Madhawa forcibly committed rape upon the informant and when the informant raised alarm, accused Nanhka said that he would solemnize her marriage with the accused/appellant Madhwa. It has been further alleged that the accused Nanhka has threatened the informant with dire consequences if she raised alarm or intimate any other person about the occurrence. It has also been alleged that due to fear, the informant did not intimate his father about the rape but subsequently after mustering courage, she intimated the matter to her aunty, who brought the informant to the police station and an FIR was lodged. 3. Pursuant thereto, charge-sheet was submitted against the accused persons for the offence under Section 376(2)(g) of I.P.C on 10.07.2012 and cognizance for the same offence was taken on 27.10.2012. Charge was framed against the accused persons for the offence under section 376(2)(g) of the Indian Penal Code and explained to him in Hindi, to which both pleaded not guilty and claimed to be tried. 4. Charge was framed against the accused persons for the offence under section 376(2)(g) of the Indian Penal Code and explained to him in Hindi, to which both pleaded not guilty and claimed to be tried. 4. In order to prove the guilt of the appellants, the prosecution has examined altogether examined 10 prosecution witnesses namely P.W.1 Radha Devi (Aunty of informant), P.W.2 Gauri Singh (Father of informant), P.W.3 Somar Singh (Uncle of Informant), P.W.4 Suman Devi @ Suma Devi (Sister of informant), P.W.5 Gobadhan Singh (Hostile witness), P.W.6 Prakash Singh (Uncle of informant), P.W.7 Sarita Kumari (informant/victim), P.W.8 Sitambar Singh (Investigating Officer), P.W.9. Dr. Alnkrita Mandal, and P.W. 10. Dr. Ram Lakhan Rajak. 5. Learned counsel for the appellants submits the learned trial court convicted the appellants on the basis of conjectures and surmises as the evidence of the prosecution witnesses is not reliable to sustain conviction of the appellants. It has been further argued that the learned trial court has failed to give concrete findings on the basis of cogent evidences as medical evidence is also vague and is not conclusive but just like an opinion. The trial court has failed to consider that prosecution has failed to collect any material evidence during investigation which could suggest that P.W.7 is the victim of rape. P.W.7 has stated at para 13 of her deposition that she had not given the clothes which was used in tying her on the alleged date of occurrence. She has further deposed at para 21 that she had not given any blood-stained clothes to the police. P.W.8 has stated at para 14 that victim has alleged that she was tied with something but the same was not seized. At para 19, he has stated clothes worn by the victim was also not asked by the I.O. 6. It is further been submitted by learned counsel for the appellants that most of the prosecution witnesses i.e. P.W.2 at para 3, P.W.3 at para 4, P.W.4 at para 5, P.W.5 at para 2, P.W.6 at para 6 have deposed that they were not examined by the police during investigation. Thus, in this situation, evidence of the prosecution witnesses does not inspire much confidence as most of the prosecution witnesses are highly interested witnesses and there is every possibility that they might have falsely deposed against the appellants. Thus, in this situation, evidence of the prosecution witnesses does not inspire much confidence as most of the prosecution witnesses are highly interested witnesses and there is every possibility that they might have falsely deposed against the appellants. Further it is very important to mention here that there is neither any eye witness nor any circumstantial evidence, save and except, hearsay evidences of relatives. It is very interesting to note here that one lady who wrote FIR at police station namely Sudha Devi who had looked after the case of victim, has not come forward to depose in support of the victim without any reasons. 7. Further, the statement of the prosecutrix become very doubtful as she has stated something more before the learned trial court what she has not stated in the FIR or her re-statement during investigation. In order to fulfill the gap or lacuna of the prosecution case, since she has stated regarding gagging her mouth on the point of knife and she was threatened on disclosing the fact in respect of occurrence and only after four days she narrated the whole episode to her Aunty. All these statements for the first time came before the learned trial court and the same new fact has not been supported by I.O. (P.W.8) at Para 26 of his depositions which creates reasonable doubts. Therefore, false implication of the appellants cannot be ruled. 8. Learned counsel for the appellants has made an alternative argument that looking to the allegation and the deposition of the prosecutrix and other P.W.s, in no case it can be said to be an offence under Section 376(2)(g) of I.P.C; as such, conviction under section 376(2)(g) I.P.C. is bad in law. Even otherwise, punishment for life is a very severe punishment and it is evident that the appellant, Madhwa Singh @ Madhey Singh @ Madhwa Kumar Singh @ Madhwa Kumar @ Singh [Cr.Appeal (D.B) No. 531 of 2013] has remained in custody for about 12 years. Accordingly, the conviction of the appellant may be modified from section 376 (2) (g) to section 376(1) of I.P.C. and the sentence may be modified for the period already undergone. 9. Learned A.P.P. defended the findings of the learned trial court while convicting and sentencing the appellants. Accordingly, the conviction of the appellant may be modified from section 376 (2) (g) to section 376(1) of I.P.C. and the sentence may be modified for the period already undergone. 9. Learned A.P.P. defended the findings of the learned trial court while convicting and sentencing the appellants. He submits that there is no error in the impugned judgment and the learned trial court has rightly convicted them for the offence under Section 376(2)(g) of I.P.C and looking to the nature of crime which is so heinous, life imprisonment was the appropriate punishment for the appellants. 10. We have heard learned counsel for the rival parties and have perused the materials available on LCR and the impugned judgment. From perusal of the deposition of the prosecutrix (P.W-7), the manner of occurrence and the place of occurrence has been described. The victim has also categorically stated at Para-1 of her deposition that after committing the offence of rape one of the appellants had assured to marry her and even a Panchayati took place in the village, in which it was decided that the appellant should marry the victim, but the appellant was not ready for marriage and thereafter the case was registered. As a matter of fact, P.W.-7 (Victim) in Paras- 13, 21 & 22 of her cross-examination, has supported the case of the prosecution. In Para 25, she had flatly denied the defense suggestion that no occurrence took place and that no Panchyati took place. She had also denied that her father was negotiating for marriage. The victim was cross-examined at length. However, from the cross-examination, nothing contradictory came out, except the delay of three days in lodging of the F.I.R. After going through Para-1 of the deposition of the victim itself, which has not been controverted in her cross-examination, it is evident that the appellant, namely, Nankha Kumar tied her mouth and hand and he went away leaving the victim and the appellant-Madhwa Singh in the room and thereafter Madhwa Singh committed rape upon the victim. It also transpires from the deposition that after commission of rape, the appellant-Nankha Kumar assured her that he would get her married to appellant-Madhwa Singh and thereafter a Panchyati was convened on the very next date. However, he refused to marry the prosecutrix and thereafter the case was lodged. 11. It also transpires from the deposition that after commission of rape, the appellant-Nankha Kumar assured her that he would get her married to appellant-Madhwa Singh and thereafter a Panchyati was convened on the very next date. However, he refused to marry the prosecutrix and thereafter the case was lodged. 11. The contention of learned counsel for the appellants that the appellants have been falsely implicated in this case only for the reason that since the appellant-Madhwa Singh refused to marry the victim, the criminal case has been lodged, is not worth acceptance as the fact remains that the victim has fully supported the prosecution case with regard to the manner of occurrence, place of occurrence as well as time of occurrence and after going through the entire deposition of the victim herself, no iota of doubt is created in mind with regard to false implication. 12. So far as the contention of the appellants with regard to non-availability of eye witness, save and except the victim, is also not accepted by us. Admittedly, in such type of cases, it is very difficult to have eye witnesses apart from the victim herself and as aforesaid, the evidence of the victim clearly corroborates the prosecution case. Further, from the evidence of P.W.2, who is father of the victim that he has gone outside the residence for a couple of days and when he came back and heard about the incidence, he convened a Panchayat, in which the Panch asked the appellant to marry the victim, but the appellant did not agree. This witness was also cross-examined. In his cross-examination, nothing new came out from him. P.W. 3 is an independent witness. He has stated that only in Panchyat he came to know about the incidence. P.W.4 is the elder sister of the victim. She had stated that when she came to the parental house, she came to know about this incidence. She has fully supported the prosecution case. P.W.9 who is the Doctor who had medically examined the victim, wherein she has stated that hymen of the victim was found ruptured which was suggestive of rape. This witness has also proved the medical report which is Ext.-4. P.W.10 was the member of the Medical Board, which was constituted for age determination. He has proved the report of Medical Board. This witness has also proved the medical report which is Ext.-4. P.W.10 was the member of the Medical Board, which was constituted for age determination. He has proved the report of Medical Board. He has assessed the age of the victim to be 17 years of age. 13. After discussing the deposition of the aforesaid P.Ws., it is clear that the main witness is the victim herself and she had fully supported the case; as such we are having no hesitation in holding that the appellant-Madhwa Singh had committed offence of rape with the help of the appellant-Nanhka, and as such the learned trial court has rightly convicted both of them. 14. Now, coming to the alternative argument of learned counsel for the appellants that it was not a gang rape and as such since the appellant-Madhwa Singh remained in custody for about 12 years and the appellant-Nanhka Kumar is in custody for 756 days; as such their conviction under section 376 (2) (g) I.P.C. be modified to 376 (1) I.P.C. and accordingly, the sentence may also be modified to the period already undergone by them. In this regard, looking to the proved allegation and the manner of occurrence, we hold that this is not a case under Section 376(2)(g) of I.P.C as the offence has not been committed in during communal violence; rather it is a case under Section 376(1) of I.P.C. It is also an admitted fact that Panchyati was convened at the request of the father of the victim in which the appellant was directed to marry the victim; however, he refused. 15. Looking to overall facts and circumstances of the case, we hold that the appellants are guilty for the offence under Section 376(1) of I.P.C; as such, the conviction of the appellants for the offence under section 376 (2) (g) I.P.C., is hereby, modified to Section 376 (1) I.P.C. We further hold that punishment for life in this case is a very severe punishment; as such we hereby substitute the punishment for Madhwa Singh @ Madhey Singh @ Madhwa Kumar Singh @ Madhwa Kumar @ Singh [Cr. Appeal (DB) No. 531 of 2013] from life imprisonment to rigorous imprisonment for 10 years with fine of Rs. 25,000/- and in default of payment of fine, further R.I for six months. We further hereby substitute the punishment of the appellant-Nanhha Kumar [Cr. Appeal (DB) No. 531 of 2013] from life imprisonment to rigorous imprisonment for 10 years with fine of Rs. 25,000/- and in default of payment of fine, further R.I for six months. We further hereby substitute the punishment of the appellant-Nanhha Kumar [Cr. Appeal (D.B) No. 536 of 2013] from life imprisonment to rigorous imprisonment for 7 years with fine of Rs. 25,000/- and in default of payment of fine, further R.I for six months. From the records we see that the appellant- Madhwa Singh @ Madhey Singh @ Madhwa Kumar Singh @ Madhwa Kumar @ Singh has remained in custody for about 12 years and has already completed the modified sentence imposed upon him and accordingly appellant- Madhwa Singh @ Madhey Singh @ Madhwa Kumar Singh @ Madhwa Kumar @ Singh shall be released, subject to payment of fine of Rs. 25,000/- and if he is not wanted in another case. From the records we see that the appellant-Nanhha Kumar [Cr.Appeal (D.B) No. 536 of 2013] has remained in custody for about 756 days only. Accordingly, the appellant-Nanhka Kumar is directed to surrender before the learned Trial Court to serve rest of the sentence. 16. As a result, the instant appeals are party allowed. The judgment of conviction dated 11.06.2013 and order of sentence dated 14.06.2013 passed by the learned Sessions Judge Koderma in Sessions Trial No. 129/12 arising out of Koderma (T) P.S. Case. No. 93/12 corresponding to G.R. No.240/12 is modified to the aforesaid extent.