ALOK KUMAR BASU, J. ( 1 ) ONE Smt. Sitarani Jha, wife of Upendranath Jha, of village Mahindarpur of district Begusarai, on 29th April, 1984 at 10. 45 a. m. coming to Bardhaman P. S. lodged a written complaint to the effect that on previous day that is on 28th April, 1984 at about 8 p. m. when she came at bardhaman Railway Station and was about to go to Badamtala bus stand in a rickshaw, she was intercepted on her way by four of five persons and thereafter she was taken forcibly to a house under construction and thereafter two of those persons forcibly committed rape on her one after anothe'r. Smt. Sitarani jha further stated in her complaint that after commission of rape she was left in a nearby tea stall and after sometime one Parimal Babu and Probal Babu and some other public rescued her from the shop and took her to the house of one of her relative. Smt. Jha further stated in her complaint that on the next morning i. e. on 29th April, 1984 local people brought one Utpal Das, one haradhan @ Vhalta Sutradhar and one Banshidhar Dawn before her and she identified Utpal and Haradhan @ Vhalta Sutradhar as the persons who committed rape on her and at that time Haradhan @ Vhalta managed to flee away. ( 2 ) SMT. Sitarani Jha disclosed the name of remaining persons as she collected the same from the local people in her written complaint. ( 3 ) ON the basis of written complaint of Smt. Sitarani Jha lodged on 29th april, 1984 Bardhaman P. S. started a case being No. 65 dated 29th April, 1984 under section 376/34 of the IPC against the present respondents Banshidhar, utpal, Haradhan @ Bhalta and Bapi and after completion of investigation, chargesheet was submitted against all of them for their trial in open Court. ( 4 ) AFTER submission of chargesheet by police in Bardhaman P. S. Case No 65 of 1984, the same was committed to the Court of Sessions and the same was registered as Sessions Case No. 192 of 1987 and it came up for disposal before the learned Additional Sessions Judge, 2nd Court, Bardhaman. ( 4 ) AFTER submission of chargesheet by police in Bardhaman P. S. Case No 65 of 1984, the same was committed to the Court of Sessions and the same was registered as Sessions Case No. 192 of 1987 and it came up for disposal before the learned Additional Sessions Judge, 2nd Court, Bardhaman. ( 5 ) THE learned Additional Sessions Judge after considering police papers and after hearing both prosecution and the accused persons framed charges against four accused persons under sections 366/368/376/34 of the IPC and all the accused persons pleaded not guilty to those charges and claimed for trial. ( 6 ) THE prosecution side, during trial, examined P. W. 1 Probal Chakraborty, p. W. 2 Parimal Ghosh, P. W. 3 Rabi Das, P. W. 4 Joydeb Prajapati, P. W. 5 shyamal Karmakar, P. W. 6 Bipul Samaddar, P. W. 8 Dr. A. Chakraborty who examined the victim woman, P. W. 10 Sri I Chatterjee the learned Judicial magistrate who recorded the section 164 Cr. PC statement of the victim woman, p. W. 14 Smt. Sitarani Jha, the de facto complainant and the victim woman and p. W. 11 and P. W. 17 who were police officers and who took part in the investigation. ( 7 ) PROSECUTION, during trial, also produced report of the doctor on medical examination of the victim woman (exhibit 2), report of the FSL (Exhibit 1), report of the serologist (Exhibit 7), seizure list regarding the wearing apparels of the victim woman (Exhibit 8) and also the statement of the victim woman recorded under section 164 of the Cr. PC (Exhibit 6) along with the original written complaint of the victim woman. ( 8 ) THE learned Additional Sessions Judge after considering the prosecution evidence both oral and documentary and after hearing the prosecution and the accused persons ultimately recorded an order of acquittal in respect of the accused persons after taking into consideration the 'probability factor' and holding inter alia that since prosecution failed to prove its case beyond the shadow of reasonable doubt, the accused persons are all entitled to get benefit of doubt in respect of the charges framed against them. ( 9 ) THE State of West Bengal being highly aggrieved and dissatisfied with the order of acquittal recorded by the learned Additional Sessions Judge preferred the present appeal. ( 9 ) THE State of West Bengal being highly aggrieved and dissatisfied with the order of acquittal recorded by the learned Additional Sessions Judge preferred the present appeal. ( 10 ) THE learned Advocate appearing for the State appellant after placing the entire evidence of prosecution submits before us that the approach of the learned Trial Judge towards the fact and evidence on record appears to be not in conformity with law. The learned Advocate for the State after taking us through each paragraph of the judgment passed by the learned Judge while recording the order of acquittal submits that the learned Judge as it appears from his judgment itself started scanning of evidence with a doubtful mind about the veracity of the prosecution case from the very beginning. ( 11 ) THE learned Advocate contends that the occurrence took place during the night of 28th April, 1984 and the victim woman being a stranger to the locality was rescued by the local people and she was brought to her relative's house for her temporary shelter for that night and at the next morning, local people brought three miscreants before the victim woman and of these three miscreants, the victim identified accused Utpal and Haradhan @ Vhalta as the persons who committed rape on her and Vhalta although managed to escape, but, local people produced the victim woman along with Utpal Das and banshidhar at Bardhaman P. S. and the victim woman at Bardhaman P. S. lodged the written complaint and it is very important to remember that victim woman soon after commission of rape on her narrated the entire incident to the local people of whom Probal Chakraborty was examined as P. W. 1. ( 12 ) THE learned Advocate for the State contends that in this particular case there was practically no delay in lodging the FIR and all the four persons were indentified by the victim woman and among those four persons victim woman specifically identified Utpal Das and Haradhan @ Vhalta as the persons who actually committed rape on her and she identified them at the morning of the next day at the P. S. and also during her deposition before the learned Trial court. ( 13 ) THE learned Advocate for the State contends that victim woman was also produced before the learned Magistrate P. W. 10 for recording her statement under section 164 of the Cr. PC and on 30th April, 1984 victim woman gave her statement which was totally corroborated by her during her deposition before the Trial Court and that deposition was recorded almost after four years of the occurrence and the victim woman took the trouble of attending the Court from begusarai. ( 14 ) THE learned Advocate submits that there is nothing in the cross-examination of the victim woman that she was previously known to the accused persons or there was any bitter relation between her and the accused persons and for this reasons, it can be easily stated that there was no ground for the victim woman to give any false statement against the accused persons, more so, in a case touching her own dignity and character. ( 15 ) THE learned Advocate for the State submits that although it is now a settled position of law that in a trial for a charge under section 376 of the IPC there is no question of corroboration of the testimony of the victim woman yet in this case from the statement of P. W. 1, P. W. 2, P. W. 4 and P. W. 6, it can be firmly stated that the testimony of the victim woman was sufficiently corroborated. ( 16 ) THE learned Advocate contends that in a case under section 376 of the ipc, as a matter of prudence, the Court would require corroboration regarding the testimony of the victim woman in the form of medical report and in this particular case the victim woman being a married woman and being habituated in sexual intercourse, although P. W. 8 the doctor on medical examination could not give any opinion regarding commission of rape, but, after considering the report of FSL and serologist, the doctor P. W. 8 categorically stated during his examination that the victim woman was subjected to rape. ( 17 ) THE learned Advocate for the State contends that when the victim woman in her first statement in the form of FIR narrated the incident, which she reiterated in her statement recorded under section 164 of the Cr. ( 17 ) THE learned Advocate for the State contends that when the victim woman in her first statement in the form of FIR narrated the incident, which she reiterated in her statement recorded under section 164 of the Cr. PC and which she repeated firmly again during her deposition before the Trial Judge and when the victim woman was a stranger in the locality and when she had no enmity with the accused persons, the learned Trial Judge totally misdirected himself in the matter of discarding such a faithful evidence coming from victim woman herself. ( 18 ) THE learned Advocate for the State contends that the victim woman did not make any false statement was amply demonstrated from the statement of p. W. 1 who actually took leading role along with P. W. 2 and P. W. 6 in rescuing the victim woman and in producing her before Bardhaman P. S. and although p. W. 6 was examined after one year, but, he fully corroborated the statement of the victim woman and no suggestion came from the accused persons that either P. W. 1 or P. W. 6 had any hostile relation with the accused persons or there was any ground for those two P. Ws. to depose falsely against the accused persons. ( 19 ) THE learned Advocate contends that when medical report completely supported the prosecution case, the learned Judge was absolutely wrong in taking into consideration the so-called 'probability factor' and extending the benefit of doubt, when having regard to the fact and circumstances of the case, there was practically no scope for the learned Judge to give such benefit to the accused persons. ( 20 ) THE learned Advocate for the State, therefore, contends that after considering the fact and evidence on record this Court of Appeal should set aside the judgment and order of the learned Trial Court and by making independent appreciation of evidence, this appeal Court would find no difficulty in accepting the prosecution case and in recording a finding of guilt against the accused persons. ( 21 ) MR. Sudipto Moitra, the Senior Counsel has challenged this Government appeal on behalf of the four respondents. Mr. ( 21 ) MR. Sudipto Moitra, the Senior Counsel has challenged this Government appeal on behalf of the four respondents. Mr. Moitra at the outset has clarified the position of law as regard an appeal preferred against an order of acquittal with the aid of two decisions of the Hon'ble Supreme Court reported in the case of Muluwa son of Binda and Ors. vs. State of Madhya Pradesh, reported in 1975 scc (Criminal) page 759 and in the case of Rajendra Prasad vs. State of Bihar, reported in 1977 SCC (Criminal) page 308, respectively and both the decisions were delivered by a Bench consisting of three Hon'ble Judges of the Hon'ble supreme Court. ( 22 ) FOR our benefit and guidance we may reproduce here paragraph 18 from the judgment of Muluwa son of Binda and Ors. (supra) which is as follows: "18. All said and done, this is a case where two views on the evidence are reasonably possible, one taken by the Trial Court and the other reached by the High Court. It is well-settled that in the absence of any material irregularity, manifest error or illegality, the High Court should not interfere with the order of acquittal, merely because, it thinks that it would, sitting as a Trial Court, have taken the other view of the evidence. " ( 23 ) NOW, we may reproduce para 13 from the judgment of Rajendra Prasad (supra) which is as follows: "13. When a Trial Court, with a full view of the witnesses, acquits an accused after disbelieving direct testimony, it will be essential for the High Court, in an appeal against acquittal, to clearly indicate firm and weighty grounds, from the record, for discarding the reasons of the Trial Court in order to be able to reach a contrary conclusion of guilty of the accused. The High Court should be able to point out in its judgment that the Trial Court's reasons are palpably and unerringly shaky and its'own reasons are demonstrably cogent. As a salutary rule of appreciation of evidence, in an appeal against acquittal, it is not legally sufficient that it is just possible for the High Court to take a contrary view about the credibility of witnesses but it is absolutely imperative that the High Court convincingly finds it well-nigh impossible for the Trial Court to reject their testimony. As a salutary rule of appreciation of evidence, in an appeal against acquittal, it is not legally sufficient that it is just possible for the High Court to take a contrary view about the credibility of witnesses but it is absolutely imperative that the High Court convincingly finds it well-nigh impossible for the Trial Court to reject their testimony. This is the quintessence of the jurisprudential aspect of criminal justice. " ( 24 ) MR. Moitra contends that the learned Trial Judge in his judgment clearly indicated that having regard to the contradictions in the FIR of the victim woman, her statement recorded under section 164 Cr. PC and the substantive evidence given during trial, there was scope to call in question the veracity of the allegation of the victim woman. ( 25 ) MR. Moitra submits that it was very difficult to accept the prosecution case that a victim woman being tortured by two persons as alleged would not report to the P. S. soon after the alleged occurrence, but, she would take shelter in one of her relatives' house and only on the next morning she would come forward to lodge a formal complaint. ( 26 ) MR. Moitra contends that the doctor did not notice any external injury on the person of the victim woman and, that apart, it was difficult to believe that the victim woman did not raise any alarm after being tortured by the accused persons as alleged and for these reasons also the learned Judge rightly declined to place any reliance on the testimony of the victim woman. ( 27 ) MR. Moitra contends that the identification of the accused persons was not established at all, because, it has come from the evidence of the victim woman that there was no light in the room where the alleged occurrence took place and when the accused persons were not earlier known to the victim woman it was really impossible for a woman to identify the miscreants in such a situation. ( 28 ) MR. ( 28 ) MR. Moitra contends that when the learned Trial Court after proper appreciation of evidence and after taking into consideration the 'probability factor' extended the benefit of doubt to the accused persons, even if it is possible to take a different view, this Court of Appeal in view of the decisions of the hon'ble Supreme Court already discussed should not disturb the finding of the trial Court. ( 29 ) WE have carefully examined the judgment impugned in this appeal preferred by the State in the light of prosecution evidence both oral and documentary. We have also taken into consideration the submissions made by the learned Advocate appearing for the State appellant as well as the submissions made by Mr. Sudipto Moitra appearing for the accused respondents. ( 30 ) IT is well-settled position of law that in an appeal challenging the order of acquittal, the Appeal Court can reappreciate the evidence already recorded by the Trial Court and in appropriate case, the Appeal Court can reverse the finding of the acquittal. It is also well-settled position of law as we find from the decisions referred to by Mr. Sudipto Moitra that when a Trial Court with full view of the witnesses once acquits an accused after disbelieving the direct testimony, the Court of Appeal must clearly indicate firm and weighty grounds from the record for discarding the reasons of the Trial Court and it is not legally sufficient that it would be just possible for the High Court to take a contrary view about the credibility of the witnesses, but, it is also absolutely imperative that the High Court should convincingly find that it is well-nigh impossible to accept the grounds of acquittal as recorded by the learned Trial Court. ( 31 ) WITH the salutary principle regarding appreciation of evidence and regarding appreciation of grounds of acquittal, while entertaining an appeal preferred against an order of acquittal, we may now discuss the prosecution evidence as we find from record and thereafter we may venture to examine how far the learned Trial Court was reasonably justified in discarding the prosecution evidence and in taking 'probability factor' into consideration while extending the benefit of doubt to the accused respondents while recording the order of acquittal in their favour. ( 32 ) THE accused persons before the Trial Court faced charges under sections 366/34, 368/34 and 376/34 of the IPC on the allegations that at the night of 28th april, 1984 they with a common intention abducted Sitarani Jha on her way near Bardhaman Railway Station and thereafter forcibly confined her in a building under construction and finally, two of them committed rape one after another on her. ( 33 ) THE allegations against the accused persons came directly from the victim woman and from the time of occurrence and also from the time of lodging the fir, we find that almost within 12 hours, the FIR was lodged by the victim woman herself coming at the P. S. along with some local people and also with two of the miscreants. ( 34 ) THE lodging of the FIR by Sitarani Jha at Bardhaman P. S. at 10. 45 a. m. on 29th April, 1984 has never been challenged by the accused persons during trial and police officers of Bardhaman P. S. sufficiently corroborated about the lodging of the FIR by Sitarani Jha. ( 35 ) WE find from the FIR that Sitarani Jha was a married woman and she came from Begusarai and she was proceeding towards Satgachiya, a village in the district of Bardhaman and when she could not avail herself of the bus for proceeding towards Satgachiya, she was compelled to take a rickshaw for her night shelter at the house of her relative and while she was travelling by the rickshaw she was intercepted by four or five persons. ( 36 ) SITARANI Jha was taken to a building under construction and there she was ravished by two persons and according to her FIR she identified those two persons on the next morning when local people brought those two persons before her. ( 37 ) THE learned Trial Judge as regards the testimony of Sitarani Jha cherished doubt in his mind mainly on the ground that there are certain contradictions in her statement, she did not raise any alarm and it was not possible for her to identify the alleged miscreants who committed rape on her. ( 37 ) THE learned Trial Judge as regards the testimony of Sitarani Jha cherished doubt in his mind mainly on the ground that there are certain contradictions in her statement, she did not raise any alarm and it was not possible for her to identify the alleged miscreants who committed rape on her. ( 38 ) WE have carefully considered the entire deposition of Sitarani Jha together with her cross-examination done by the accused persons during trial and also her FIR given before Bardhaman P. S. and also her subsequent statement given before the learned Judicial Magistrate P. W. 10 and we have no hesitation in mind to hold that even a man of ordinary prudence will not notice any major contradiction in her statement recorded by the learned Judicial magistrate and in the statement given by her during trial. ( 39 ) IT is pertinent to mention that Sitarani Jha was a resident of Begusarai and she came to depose almost after four years from the date of occurrence and there is nothing in her statement to indicate that she was previously known to the accused persons and there is nothing further in her statement to indicate that she had any hostile relation with the accused persons whom she particularly identified for commission of rape on her and in that background, we are in total disagreement with the learned Judge that the testimony of Sitarani Jha did not inspire confidence as required in a case under section 376 of the IPC. ( 40 ) THERE is no denying of the legal position as held by the Hon'ble Apex court of the land in catena of decisions relating to the charge under section 376 of the IPC that a victim woman cannot be equated with an accomplice and if the deposition of a victim woman appears to be convincing, trustworthy and credible, the Trial Court would not call for corroboration either through any other witness or even through medical evidence. ( 41 ) THE most tragic part of the judgment recorded by the learned Trial Court appears to be that regarding comment of the learned Judge about medical evidence. ( 41 ) THE most tragic part of the judgment recorded by the learned Trial Court appears to be that regarding comment of the learned Judge about medical evidence. The learned Judge recorded in his judgment that there was no medical evidence to corroborate the allegation of rape, but, we find that P. W. 8 after considering the report of FSL clearly opined that there was sufficient proof of commission of rape on the victim woman and as the victim woman was a married woman and habituated in sexual intercourse, P. W. 8 could not give his firm opinion about commission of rape at the time of examination of the victim woman, but, only taking into consideration the report of the FSL he deposed in the Court that there was evidence of recent intercourse. ( 42 ) WE find from record that soon after lodging of the FIR, Investigating officer seized wearing apparels of the woman as it is apparent from the seizure list and a cutting of the saya and sari of the victim woman along with her vaginal swab taken by the doctor were forwarded to FSL and for examination by serologist and through Exhibit 1 and Exhibit 7, we notice that human semen was noticed in the vaginal swab and also on the saya cutting of the victim woman and this, in our considered view, was sufficient to establish the case of the prosecution that the victim woman was ravished, but, unfortunately this part of the prosecution case was totally ignored by the learned Trial Judge. ( 43 ) THE learned Judge in his judgment raised a point that there was no corroboration of the statement of the victim woman and in this context, we may refer to the evidence of P. W. 1 who rescued the victim woman along with some other local people and who fully corroborated the testimony of the victim woman including her identification of Utpal Das and Haradhan @ Vhalta who committed rape on her. Although P. W. 4 Prajapati who happens to be her relative and in whose house the victim took shelter at night was declared hostile, but, even in his examination-in-chief he supported the prosecution case that on the night of 28th April, 1984 the victim woman was brought to his house and she stayed there and on the next morning she was taken by some of the local people which again fully corroborated the FIR and substantive evidence of the victim woman. ( 44 ) P. W. 6 Bipul Samaddar was the rickshaw puller and he took the victim woman from Bardhaman Railway Station in his rickshaw and he was the man who informed the local people when victim woman was taken by the miscreants to the building under construction and although this witness was examined after a year by the second I. O. , his testimony can not be brushed aside and this witness fully corroborated both the victim woman and also P. W. 1. It is very significant to mention that P. W. 1 was virtually not subjected to any cross-examination and there was no suggestion given to P. W. 6 that he out of hostility deposed against the accused persons. ( 45 ) WE find from the FIR as well as from the substantive evidence of the victim woman that she identified Utpal Das and Haradhan @ Vhalta on the next morning being brought by the local people, as the persons who ravished her and in the Court during trial she made no mistake in identifying these two persons and from the deposition of P. W. 1, P. W. 6 and also from the deposition of the victim woman Sitarani Jha as P. W. 14 we find that Utpal Das and haradhan @ Vhalta were the persons who actually ravished Sitarani Jha. ( 46 ) THUS, from the prosecution evidence itself both oral and documentary we find that although prosecution could not establish its case against banshidhar Dawn and Bapi Acharyya under section 376 of the IPC, prosecution proved its case beyond all reasonable doubt against Utpal Das and Haradhan @ Vhalta under section 376 of the IPC and the learned Judge, in our considered view, totally ignored the prosecution evidence and in most unusual manner with wrong approach towards appreciation of evidence and under total misconception of fact and evidence, he extended the benefit of doubt to those accused persons. ( 47 ) THUS, after carefully considering the submissions of the learned Advocate appearing for the State as well as the learned Advocate appearing for the accused persons, we are of the view that the judgment of the learned Trial Court recording an order of acquittal against Utpal Das and Haradhan @ Vhalta cannot be supported in fact or in law. ( 48 ) IN the light of our above discussion, we are inclined to accept this government appeal in part and after considering the prosecution evidence, we are of the firm view that accused respondent Utpal Das and Haradhan @ Vhalta sutradhar are guilty of the offence under section 376/34 of the IPC and they are convicted accordingly. ( 49 ) NOW, we are to consider the question of recording sentence against Utpal das and Haradhan @ Vhalta Sutradhar. Although both the accused persons committed an offence under section 376/34 of the IPC, but, having regard to the fact that the incident took place in the year 1984 and also having regard to the fact that both the accused persons were found not guilty by the Trial Court, we are of considered view that it will meet the ends of justice if both the accused persons are sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs. 2,000/- each in default further rigorous imprisonment for two months each. ( 50 ) WE, therefore, allow this Government appeal in part and we set aside the order of acquittal recorded by the learned Judge as regards accused respondents Utpal Das and Haradhan @ Vhalta Sutradhar under section 376/34 of the IPC. We maintain the order of acquittal as regards Bansidhar Dawn and Bapi Acharyya. ( 50 ) WE, therefore, allow this Government appeal in part and we set aside the order of acquittal recorded by the learned Judge as regards accused respondents Utpal Das and Haradhan @ Vhalta Sutradhar under section 376/34 of the IPC. We maintain the order of acquittal as regards Bansidhar Dawn and Bapi Acharyya. ( 51 ) UTPAL Das and Haradhan @ Vhalta Sutradhar are convicted under section 376/34 of the IPC and they are sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs. 2,000/- each in default to suffer rigorous imprisonment for two months more. Since all the four accused persons were rearrested after admission of Government appeal and were released on bail, we cancel the bail bond of Utpal Das and Haradhan @ Vhalta Sutradhar with immediate effect and direct both of them to surrender before the Trial Judge within a fortnight from this order failing which the learned Trial Judge shall issue warrant of arrest against them and shall take them into custody and shall send them to the jail for undergoing the sentence. ( 52 ) RESPONDENT Bansidhar Dawn and Bapi Acharyya stand discharged from their bail bonds with immediate effect. ( 53 ) SEND the LCR immediately along with copy of this judgment with a direction to the learned Trial Court for issuance of jail warrant against Utpal das and Haradhan @ Vhalta Sutradhar after their arrest. ( 54 ) URGENT xerox certified copy of this judgment and order be made available to the accused persons (Utpal Das and Haradhan ? Vhalta Sutradhar)expeditiously free of cost. Appeal allowed in part.