Judgment Vishnudeo Narayan, J.-This appeal has been preferred by the appellants named above against the impugned judgment and order dated 30.06.1990 passed in Sessions Case No. 59 of 1989/128 of 1989 by Shri Arun Chandra Das, 3rd Additional Sessions Judge, Dumka whereby and whereunder all the appellants aforesaid were found guilty for the offence punishable under Section 395 of the Indian Penal Code and they were convicted and sentenced to undergo R.I. for five years each and further all the appellants except appellant Jitendra Nath Das were further found guilty for the offence under Section 376 of the Indian Penal Code and they were convicted and sentenced to undergo R.I. for seven years each. However, the sentences were ordered to run concurrently. 2. The prosecution case has arisen on the basis of the fardbeyan (Ext. 6) of P.W. 9 Malindo Kisku, the informant, recorded by A.S.I., Anandi Paswanat the house of P.W. 5 Kartik Hansda in village Bagjogra (Lathipara) P.S. Raneshwar, District Dumka regarding an occurrence which is said to have taken place on 11.04.1988 between 22 hours and 23 hours said to have taken place in the said house and in the said occurrence dacoity was committed in the house of P.W. 5 and P.W. 8. Meeru Hansda, the wife of the informant, is said to have been ravished by the dacoits. On the basis of the said fardbeym a case was instituted against unknown persons under Sections 395 and 376 of the Indian Penal Code by drawing of the formal F.I.R. on 12.04.1988 at 8.30 hours which was received in the court empowered to take cognizance on 14.04.1988. 3. On the basis of the said fardbeym a case was instituted against unknown persons under Sections 395 and 376 of the Indian Penal Code by drawing of the formal F.I.R. on 12.04.1988 at 8.30 hours which was received in the court empowered to take cognizance on 14.04.1988. 3. The prosecution case, in brief, is that the informant was sleeping in the courtyard of the said house along with his wife P.W. 8 Meeru Hansda besides his brother-in-law P.W. 5 Kartik Hansda and his Saali and the exit of the house was closed by "Tafi" and all of a sudden the dacoits entered inside the house and they pointed daggers on them and intimidated them not to raise alarms and the dacoits were in all ten in number and two of the dacoits remained standing near him and three dacoits did not allow P.W. 5 to get up and rest of the dacoits removed household effects of the house P.W. 5 and kept those articles in the courtyard and, thereafter, four dacoits dragged P.W. 8 Meeru Hansda from the courtyard and took her inside the room where they had removed her petticoat and felled her forcibly on the ground and ravished her and, thereafter, other five dacoits who were in the courtyard went inside the said room and they all had ravished P.W. 8 and, thereafter, they fled away carrying the looted articles which included cash, ornament, untensils, including one aluminium Dekchi, rice and paddy. It is also alleged that on query P.W. 8 had disclosed to the informant that she has been ravished by the dacoits and the dacoits belong to village Kawadumra, Bedela and Rajnagar as she has happened to see them while coming to her parent's house from village Keronaza where she was earlier married. The prosecution case further is that a Dhibri was burning inside the house and the informant and others had seen the dacoits in the fight of the said Dhibri and they can identify the dacoits. 4. The prosecution case further is that a Dhibri was burning inside the house and the informant and others had seen the dacoits in the fight of the said Dhibri and they can identify the dacoits. 4. On the basis of the said fardbeyan, the case against unknown accused persons were instituted and in course of investigation some of the dacoits were apprehended and they were put on Test Identification Parade in which all the appellants have been identified by P.W. 8 Meeru Hansda in the Test Identification Parade conducted by P.W. 3 and P.W. 4, both Judicial Magistrates, then posted at Dumka and P.W. 9, the informant has also claimed to have identified appellant Sanat Dhakaro and Nemani Dhakaro. One aluminium dekchi was also recovered in course of investigation from the house of absconding accused Nemani Dhakaro which was also put on Test Identification Parade conducted by P.W. 2, the then C.O. Raneshwar which was identified by P.W. 9, P.W.8 and P.W. 5 besides one Jasla Hansda. 5. The appellants have pleaded not guilty to the charges levelled against them and they claim themselves to be innocent and to have committed no offence and that they have been falsely implicated in this case on mere suspicion. 6. The prosecution has in all examined eleven witnesses to substantiate its case. P.W. 9, Malindo Kisku, his wife P.W. 8 Meeru Hansda and his brother-in-law P.W. 5 Kartik Hansda claim themselves to be the ocular witnesses of the occurrence. P.W. 2, Raghunath Ram, the then C.O. Raneshwar has conducted the Test Identification Parade of the said recovered aluminium dekchi. P.W.3, Akhileshwar Jha and P.W. 4, Brajesh Kumar Sinha, both Judicial Magistrates, then posted at Dumka, have conducted the Test Identification Parade of the apprehended dacoits in which the appellants are said to have been identified by P.W. 9 and P.W. 8. Ext. 3 series are the Test Identification Chart per pen of the witnesses aforesaid. P.W. 1, Dr. Usha Kiran Verma is said to have examined P.W. 8 Meeru Hansda on 13.04.1988 at 9.25 hours and her report in respect thereof is Ext. 1 in this case. P.W. 6, Madan Soren is a hearsay witness whereas P.W. 7 Thakur Soren has been tendered. P.W. 10 Rabindra Kumar and P.W. 11 Anandi Paswan are the Investigating Officers in this case. No oral and documentary evidence has been adduced on behalf of the appellants. 7. 1 in this case. P.W. 6, Madan Soren is a hearsay witness whereas P.W. 7 Thakur Soren has been tendered. P.W. 10 Rabindra Kumar and P.W. 11 Anandi Paswan are the Investigating Officers in this case. No oral and documentary evidence has been adduced on behalf of the appellants. 7. In view of the oral and documentary evidence on the record and having placed reliance upon the testimony of P.W. 8 read with P.W. 9 and P.W. 5 corroborated by the testimony of P.Ws. 2, 3 and 4 and Ext. 3 series, the learned court below came to the finding of the guilt of all the appellants for the offence under Section 395 and further all the appellants except accused Jeetendra Nath Das @ Jeetendra Das guilty for the offence under Section 376 of the Indian Penal Code and they were, accordingly, convicted and sentenced. 8. Assailing the impugned judgment it has been submitted by the learned Niranjan Kumar, Amicus Curiae that the court below was swayed by surmises and conjectures and has not considered the evidence on the record in proper perspective and has committed a manifest error in coming to the finding of the guilt of the appellants on both the counts. It has further been contended that these appellants do not dispute the factum of the dacoity having been committed in the house of P.W. 5, Kartik Hansda in village Bagjogra but they only dispute the fact that they were not the participants in the dacoity as well as in ravishing P.W. 8 Meeru Hansda, the wife of the informant in the alleged occurrence and they have been falsely implicated in this case on mere suspicion and they were shown in the police station itself to the informant as well as his wife P.W. 8 prior to their putting on the Test Identification Parade. It has also been submitted that allegation of gang rape as alleged by the prosecution committed on the person of P.W. 8, Meeru Hansda by nine dacoits is highly improbable and unnatural and P.W. 1, the medical witness has negated the factum of ravishment of P.W. 8 in the alleged occurrence and the learned court below has wrongly believed the evidence of the medical witness. It has also been submitted that the medical witness has neither found any external injury on the person of P.W. 8 nor any internal injury on her private part whereas in a case of gang rape committed forcibly after felling on the ground there must be some injuries especially on the back portion of the ravished woman. It has also been contended that in this case as alleged by the prosecution the alleged victim has been gang raped by nine dacoits but no sperm, dead or alive, has been found on her vaginal swab on pathological examination specially when the said victim woman was examined by the medical witness within 35 hours of the occurrence and this aspect of the matter equally belies the prosecution case regarding ravishment of P.W. 8 by the dacoits. It has further been contended that the identification of the dacoits in the light of Dhibri burning at the verandah of the house away from the courtyard appears to be improbable. It has also been submitted that the alleged means of the identification i.e. the Dhibri has neither been shown to the I.O. nor was it recovered by him and brought before the court and in the absence of the means of identification the prosecution case regarding the informant and others seeing the dacoits in course of commission of the occurrence is equally false and T.I.P. of the appellants is definitely not free from blemish as they have been shown to the informant and his wife at the police station on their apprehension. Lastly it has been contended that the informant as well as P.Ws. 8 and 5 have not raised alarms as per the prosecution case in view of the fact that they had intimidated at the point of dagger and as such it appears queer enough as to how P.W. 11, A.S.I., Anandi Paswan happened to come to the place of occurrence for recording the fardbeyan of the informant which equally makes entire case suspicious and viewed thus the impugned judgment is unsustainable. 9. 9. Refuting the contention aforesaid it has been submitted by the learned A.P.P. that evidence on the record clearly establishes the fact that the dacoity has been committed in the house of P.W. 5 Kartik Hansda, at the relevant time and an aluminium Dekchi which is the subject matter of the dacoity has been recovered from the house of absconding co-accused Nemani Dhakaro which was put on Test Identification Parade conducted by P.W. 2, the then C.O. Raneshwar and the said recovered aluminium dekchi was identified by P.W. 9, P.W. 8 and P.W. 5 besides others. It has also been submitted that in this case the means of identification is the light of the Dhibri and villagers are accustomed to see and perform their daily chores in the light of the Dhibri and as such the prosecution witnesses, namely, P.W. 9, P.W. 8 and P.W. 5 had occasion to see the dacoits in the said light. The learned A.P.P. has, however, very fairly submitted that here in this case nine dacoits are said to have ravished P.W. 8, Meeru Hansda but the medical evidence does not support the factum of ravishment and in this view of the matter the case of the prosecution in respect thereof appears to be not correct. 10. According to the prosecution case P.W. 9, the informant was sleeping in the courtyard of the house of P.W. 5, Kartik Hansda in the night of 11.04.1988 and his wife P.W. 8 Meeru Hansda and his brotherin-law P.W. 5, Kartik Hansda were also sleeping there and at about 10 o'clock in the night ten dacoits entered in the said house and they had committed dacoity and removed the household effects from the said house and have also ravished his wife Meeru Hansda. P.W. 9, the informant has deposed that he was sleeping in the courtyard of the said house along with his wife and his brother-in-law P.W. 5 Kartik Hansda and there was a Dhibri burning in the verandah of the said house and ten dacoits entered into the said house and 'they have removed the household effects from the said house besides Rs. 1,000/- in cash. 1,000/- in cash. His evidence is further to the effect that after committing the dacoity four dacoits had dragged his wife inside the room where she was ravished and, thereafter, the four dacoits came out of the said room and the remaining five dacoits, thereafter, entered into the room and they had also ravished her. He has also deposed that he had seen the dacoits in the light of the Dhibri which was burning at the verandah inside the house. He has further deposed that he had identified appellants Sanat Dhakaro and Nemani Dhakaro in the Test Identification Parade conducted by the Judicial Magistrate in the district Jail. Similar is the evidence of P.W. 8, Meeru Hansda. She has also claimed to have identified all the four appellants in the Test Identification Parade. Her evidence is further to the effect that she has been ravished by the dacoits one by one which led to the bleeding from her private part and her clothes were also besmeared with blood. P.W. 9 and P.W. 5 has deposed that after fleeing of the dacoits she has stated before them about her ravishment by the dacoits. P.W. 5, .Kartik Hansda has also corroborated the testimony of P.W. 9 and P.W. 8 except regarding the factum of identification of the appellants in the Test Identification Parade. P.W. 3, Akhileshwar Jha, the then Judicial Magistrate, Dumka has deposed to have conducted the Test Identification Parade on 25.04.1988. He has deposed that P.W. 9, P.W. 8 and P.W. 5 have participated in the Test Identification Parade in which P.W. 5 did not identify any of the dacoits whereas P.W. 9 has identified appellant Sanat Dhakaro and Nemani Dhakaro besides other dacoits who are not on trial in this case. Ext. 3 shows that they were identified by P.W. 8 in course of her ravishment by them. P.W. 9 has deposed to have identified the aforesaid two appellants in course when they were being assaulted at the police station and he had identified them at the first instance at the police station. P.W. 4 has deposed that he had conducted the Test Identification Parade on 14.07.1988 in which P.W. 8 Meeru Hansda had identified appellant JitendraNath Das @ Jitendra Das holding dagger and standing at the door in course of the commission of the dacoity. P.W. 4 has deposed that he had conducted the Test Identification Parade on 14.07.1988 in which P.W. 8 Meeru Hansda had identified appellant JitendraNath Das @ Jitendra Das holding dagger and standing at the door in course of the commission of the dacoity. In the Test identification Parade held on 29.09.1988 by P.W. 4, appellant Amar Dhakaro had been identified by P.W. 8 Meeru Hansda while he was committing dacoity and removing the articles from the house and at that time he was armed with dagger. It is pertinent to mention here that appellant Amar Dhakaro has not been identified in course of ravishing P.W. 8, Meeru Hansda. However, P.W. 8 and P.W. 9 have denied in their evidence on oath to have seen the appellants at the place where they were being assaulted by the police. Both the witnesses are lying on the most material aspect of the prosecution case regarding identifying them at the police station prior to Test Identification Parade in view of the averment made in the Test Identification Chart (Ext.3) corroborated by P.W. 3 in para 7 of his evidence. It is, therefore, clear from the evidence of P.W. 3 that P.W. 8 and P.W. 9 have stated before them to have seen the appellants at the police station prior to the Test Identification Parade. Therefore, the very identification of the appellants by P.W. 8 and P.W. 9 in the Test Identification Parade becomes tainted and it cannot be said to be free from blemish. If the evidence regarding Test Identification Parade as deposed by P.W. 8 and P.W. 9 is discarded in this case, there remains nothing on the record to establish that they have committed dacoity in the house of P.W. 5 and they have been identified by P.W. 8 and P.W. 9. Appellant Jitendra Nath Das @ Jitendra Das in his statement under Section 313 of the Code of Criminal Procedure has categorically stated that he was known to P.W 8 from before. Therefore, identification of the appellants by P.W. 8 and P.W. 9 in the Test Identification Parade has no bearing and it pales into insignificance. P.W. 1, Dr. Appellant Jitendra Nath Das @ Jitendra Das in his statement under Section 313 of the Code of Criminal Procedure has categorically stated that he was known to P.W 8 from before. Therefore, identification of the appellants by P.W. 8 and P.W. 9 in the Test Identification Parade has no bearing and it pales into insignificance. P.W. 1, Dr. Usha Kiran Verma has deposed in the most clear and unequivocal terms that she did not find any external injury on the person of P.W. 8 and on internal examination also she did not find any injury on her private parts and also no foreign hair was found on her private parts. She has further deposed that no sperm, dead or alive, was found in her vaginal swab. She has also deposed that her hymen shows old tears and thus she has opined that no definite opinion could be given as to whether P.W. 8 has been ravished or not. In a case of gang rape as alleged by the prosecution committed by nine dacoits, the existence of injuries on her private parts as well as external injury on the back portion of her body can definitely be not ruled out and their absence in the facts and circumstances of this case casts a cloud of suspicion to the very credibility of the prosecution case regarding her ravishment as alleged. The evidence of P.W: 8 and P.W. 9 that there was bleeding from the private, part of P.W. 8 also does not stand' substantiated as per the medical witness and besides that the I.O. has not deposed, regarding finding of any blood fallen inside the room as well as blood stains on her clothes. In this view of the matter the case of rape, as, alleged by, the prosecution is totally false and there is no iota of legal evidence at all on the record to corroborate it The Dhibri which is said to be the means of identification of, the appellants in course of commission of dacoity, has neither been seized by the I.O. nor brought on the record. There is no evidence on the record that there was any Dhibri burning in the room where, P.W.8 is alleged to have been ravished. Therefore, seeing the dacoits by their face in the light of Dhibri is highly improbable in the facts; and circumstances of this case. There is no evidence on the record that there was any Dhibri burning in the room where, P.W.8 is alleged to have been ravished. Therefore, seeing the dacoits by their face in the light of Dhibri is highly improbable in the facts; and circumstances of this case. To sum up there is neither any legal evidence of the identification of the appellants in the commission of the dacoity in, the house of P.W. 5 nor there is any legal and reliable evidence on the record of ravishment of P.W. 8, Meeru Hansda by the aforesaid appellants inside the room. The learned court below did not meticulously consider the evidence on the record in, proper perspective had has committed a manifest error in coming to the finding of the guilt of the appellants. Thus the impugned judgment cannot be sustained. 11. There is merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment of the learned court below is hereby set aside. The appellants are not found guilty and they are, accordingly, acquitted and discharged from the liability of their bail bonds.