Crl.A. 6/2010 BEFORE THE HON’BLE MR JUSTICE P.K.MUSAHARY The appellant, on being convicted u/s. 376(2)(g) IPC and sentenced to under to R .I. for a period of 10 years with a fine of Rs. 10,000/- in default, further to undergo R.I. for one year vide impugned judgment and order dated 8.12.2009 rende red by the learned Addl. Sessions Judge (FTC), Kamrup Guwahati has preferred thi s appeal. 2. The facts of the case leading to such conviction and sentence are that t he prosecutrix was working in a PCO at Adabari, Guwahati. As usual she was retur ning from her work place on 30.09.2001 in a passenger bus from Adavari to her ho use at Dadara and while it arrived at Agiathuri the driver of the vehicle stoppe d the bus and asked the passengers to board another vehicle as it would not go f urther. It was at about 6 p.m., she got down from the bus at Agiathuri Gaonburah Chowk and when the prosecutrix stopped one Auto Rickshaw, 5/6 unknown boys did not allow her to board the Auto rickshaw, instead they forcibly took her away by gagging her mouth by a piece of cloth to a nearby field and all of them rape d her one after another due to which she fell unconscious and after some time, when she regained sense, one person of that area took her home. On the followi ng day she lodged an FIR with Hajo P.S. which was registered as Hajo P.S. Case N o. 216/2001 u/s. 376 IPC. During investigation it came to light that the accused Jon Ali, Moinul Ali, Mojaffor Ali, Tayab Ali, Baitullah and Bhaity Ali were inv olved in the crime. All the said accused persons, except Bhaity Ali, were arrest ed and forwarded to judicial custody. A test identification parade was held for identification of the accused person by the victim/ prosecutrix. On completion o f investigation charge-sheet was submitted against the aforesaid accused person s showing accused Bhaity Ali as absconder. The case being committed, Charges wer e framed u/s. 376(2)(g) IPC to which, on being read over and explained, pleaded not guilty and claimed to be tried. The prosecution examined as many as 10 witne sses. The statement of the accused person were recorded u/s. 313 Cr.P.C., who de nied all the allegations made against them but they examined no witnesses in the ir defence. On the basis of the evidence and documents on record, the learned Tr ial Court convicted and sentenced the present appellant as stated earlier. 3. Mr. S.K. Talukdar, learned counsel for the appellant submits that the le arned Trial Court failed to properly appreciate the evidence on record and witho ut correctly applying the law in accepting the evidence of the victim/ prosecutr ix convicted and sentenced the appellant solely on the basis of the evidence of the victim women. According to him the evidence of the victim woman is inconsist ent and full of contradictions which can not be treated a reliable, acceptable and of sterling nature for conviction of an accused. Conviction and sentence bas ed on such evidence, as submitted by the learned counsel for the appellant is un sustainable under the law and the appellant should be acquitted. 4. Mr. K. Munir, learned Addl. P.P. submits that there is neither inconsis tency nor any serious contradictions in the evidence of the prosecutrix to rende r her evidence as unworthy of being accepted as reliable and truthful. According to him the learned Trial Court committed no lapse or wrong in appreciating the evidence on record and convicting and sentencing the accused. 5. I have gone through the records and scanned the evidence, particularly t he evidence of the victim who was examined as PW-1 and the medical officer who w as examined as PW-3 (A). The incident took place on 30.09.2001 at around 6 p.m. . The FIR was lodged on the next day i.e. on 1.10.2001 which was received at 7 p .m. She was produced before the medical officer on duty in the Forensic Departme nt of Guwahati Medical College on 2.10.2001 at 1-50 p.m. (Ext. 3) and she was me dically examined. She was also produced before the Judicial Magistrate on 5.10.2 001 and her statements were recorded under Section 164 Cr.P.C. 6. There was no delay in lodging the FIR inasmuch as it was lodged within 4 2 hours. The medical examination was done on 2.10.2001 at 1-50 p.m. i.e. after a bout 42 hours from the time of occurrence. TIP was conducted on 30.04.2002. In t he said TIP accused Moinul, Mujaffor, Toybullah Ali and Baitullah Ali were produ ced. Amongst those accused persons only Mujaffor was identified by the victim. B ut during trial in the court the victim pointed at Md. Mujaffor, Mainul, Taibull ah Ali, Jon Ali as the persons who committed rape on her. 7. The acceptability of evidence of the victim woman is to be considered af ter close scrutiny and appreciation of her evidence read with the FIR, statement u/s. 164 Cr.P.C., her deposition before the trial court and also the medical re port. In the FIR (Ext. 1) the accused persons, 5/6 in number, gagged her mouth w ith cloth and took her to the paddy field and on being gang raped by them she fe ll unconscious. Later on she regained consciousness and raised alarm. On hearing her alarm the person in the pig stay took her home. In the 164 Cr.P.C. statemen t she did not mention about her becoming unconscious or remaining conscious afte r being raped by aforesaid 5/6 boys. Two Bengali boys aged about 25/26 years fro m the pig stay, on hearing her alarm came and rescued her and took her to the pi g stay where she was fomented with oil and got her dress dried whereas it was no t at all mentioned in the FIR. As per her statements under 164 Cr.P.C., she cou ld recognize only one boy who raped her along with other boys as she used to mee t him while traveling in bus to Guwahati. In her evidence she also stated so. Sh e clearly stated before the learned trial court that she could not identify the remaining accused persons due to darkness. She also stated that she requested ac cused Md. Tayob Ali after the incident to take her home but she was abandoned at the paddy field. However, before the learned trial Court, while making her depo sition she pointed at 4 accused persons namely Md. Mujaffor Ali, Moinul, Tayob A li and Jon Ali as the culprits who raped her. If the contents of the FIR, state ment under section 164 Cr.P.C. and evidence of the prosecutrix are read together , one can find discrepancies and contradictions in regard to identity of the ac cused persons. It may be noted that present convict appellant was identified at the TIP but he was not the person whom she used to meet while she was traveling in the bus to Adabari. It was Tayob Ali whom she used to meet in the bus while t raveling to Adabari and he was supposed to be familiar/ known to her whereas a t the time of TIP she did not point at him as an accused. The contradiction is apparent as regards the identity of the accused persons insofar as she deposed before the Court that she could not identify the remaining accused persons due t o darkness. If it is so, how can she say at the time of deposition before the Co urt on 1.11.20006 i.e. after about 5 years from the date of occurrence, with cer tainty that the aforesaid persons including the present appellant were involved in the gang rape. 8. Turning to the medical report (Ext. 3) it is found that the medical offi cer, Dr. R.K. Gogoi, PW-3(A) who examined the victim recorded his findings as u nder - (1) her age was above 18 years and below 19 years. (2) Evidence of recent sexual intercourse is not detected on her person but she used to sex act. (3) No any violence injury mark detected on her person. The aforesaid medical officer in his deposition affirmed his aforesaid report. H e further clarified that evidence of struggles was not detected. Looking at the specific allegation/ charge that 5/6 persons committed gang rape upon her and she was gagged with cloth and was physically assaulted before commi ssion of rape as she resisted them the prosecutrix should have received injury o n her person. The medical evidence belies the victim’s statement under section 1 64 Cr.P.C. made before the Magistrate that she tried to resist the accused perso ns and begged them to let her go but they assaulted, slapped and thereafter all of them committed rape on her. The evidence is that due to such gang rape she became unconscious. It is difficult to understand how a woman who was physically assaulted before be ing gang raped and resisted the perpetrators, sustained no injury at all on her person. 9. The prosecution did not seize the wearing apparels of the prosecutrix to testify that her wearing apparels were torn in the gang rape. There is no expl anation why her wearing apparels were not seized. Since the wearing apparels go t wet as she moved through water in the field it may not be possible to find any semen or other material on her wearing apparels but it could have h elped the prosecution to show that the culprits used force during the alleged ga ng rape. 10. There is a point to be noted. The aforesaid two Bengali boys who took t he victim to the pig stay or shed and gave treatment and escorted her home in th e night were not cited as witnesses although it was indicated in the statement recorded u/s. 164 Cr.P.C.. The first Investigating Officer P.W. 8 did not make i t a point to visit the said pig stay/ shed where the prosecutrix was taken and g ave treatment by two Bengali boys. The Second Investigating Officer PW-9 also di d not visit the said place during investigation. It was necessary to record the statement of the aforesaid persons in the pig stay to ascertain whether the vict im woman did really visit the pig stay in the condition / state as narrated by h er and also whether she was escorted home by them in the fateful night. It is qu ite distressful to note that the prosecution conducted the investigation in a c asual and perfunctory manner. 11. It is needless to reiterate that in criminal trial the charge against th e accused must be proved beyond all reasonable doubts. Of course, in the trial c onnected with rape or gang rape, the evidence of the victim girl/ woman must be given maximum weight and value. It is also needless to affirm that an accused c harged u/s. 376 (2)(g) IPC can be convicted solely on the basis of the evidence of the victim without even being corroborated by medical or other evidence prov ided the evidence of the victim is found to be consistent, reliable, trustworth y and sterling in nature gaining confidence of the Court. The minor contradictio ns or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case as held in State of Punjab Vs. Gurmit Singh, reported in (1996) 2 SCC 384 but in the pr esent case it is not found that the contradictions and inconsistencies / discrep ancies are not minor or insignificant, rather they are serious in nature, on th e basis of which, in my considered view, the charge against the appellant, could be said to be proved. The evidence of the victim, as examined and appreciated i s found to be not to the aforesaid standard. It suffers from inconsistencies and contradictions in material particulars and the same are not found to be trustw orthy or believable for awarding any conviction, not to speak of gaining the con fidence of the Court. 12. What is more unbelievable is that there was no injury at all on the per son of the victim/ prosecutrix although she alleged that she was assaulted befor e she was gang raped and resisted the accused persons and became unconscious aft er being gang raped. The Apex Court had an occasion to decide a case of similar nature u/s. 376 (2)(g) IPC in Lalliram and another Vs. State of Madhya Pradesh, reported in (200 8) 10 SCC 69. It was a case where allegations of gang rape by many persons and several times was made but no injury was noticed or found on the person of the v ictim. The Apex Court observed that injury is not a sine qua non for deciding wh ether rape has been committed but it should be decided on the factual matrix of each case. It was however held that after the Court finds it difficult to accep t the version of a prosecutrix on the face value it may search for the evidence direct or substantial. In the present case the offence of gang rape was committe d in the darkness and as per the evidence of the victim herself, she could not i dentify any of the accused persons who really committed the gang rape. It is unu sual and unbelievable that the victim who could not identify any accused person due to darkness at the time of committing the offence, she could identify any on e of them during TIP and after 5 years of the alleged occurrence, she could reco llect the faces of the culprits and point at them as accused persons standing in the dock. These are wholly contradictory and unbelievable and I am not inclined to accept it as an acceptable piece of evidence for convicting the accused. 13. Apart from insincere and callous investigation by the prosecution, part icularly in not seizing the wearing apparels of the victim and not interrogating the material witnesses like aforesaid Bengali boys and not citing them as witne sses to prove an important aspect of the case as to how and under what situation / state the victim was found/ recovered and how they happened to take her to th e pig stay, the place where they used to live and later on escorting her home i n the night, has left the charge not proved beyond reasonable doubt. Taking into account all the aspects discussed above, it can be said unhesitatingly that the charge against the present convict/ appellant u/s. 376 (2)(g) IPC has not been proved beyond reasonable doubt as per the standard set in the criminal trial. An d, therefore, I hold that the prosecution miserably failed to prove the charge against the present convict / appellant and he is entitled to get an order of ac quittal on benefit of doubt. Accordingly the present convict/ appellant is acqui tted of the aforesaid charge. He be set at liberty forthwith if his further dete ntion is not required in connection with any other case. Appeal stands allowed. 14. Return the LCR forthwith.