JUDGMENT : 1. Appellants Krushna Naik and Arjun Gouda were tried together with the acquittal accused Landa @ Nilamadhab Behera in Sessions Case No. 31 of 2001 (S.C. No. 241 of 2001/GDC) in the Court of Additional Sessions Judge, Bhanjanagar for the offence u/s 376(2)(g), I.P.C. read with Sections 3(1)(iii), 3(1)(xi) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 [in short 'the act, 1989']. By the impugned Judgment delivered on 03.12.2003, learned Additional Sessions Judge found the Appellants guilty of the offence u/s 376(2)(g), I.P.C. and accordingly convicted them thereunder and sentenced to imprisonment for life and to pay fine of Rs. 2,000/- (two thousand). Appellants, however, were acquitted of the charges u/s 3(1)(iii), 3(1)(xi) & 3(2)(v) of the Act, 1989 on the ground that investigation was not conducted by a duly qualified officer under Rule 7 of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Rules, 1995 [in short 'the Rules, 1995']. Since the prosecutrix (P.W.1) did not allege anything against accused Landa @ Nilamadhab Behera, therefore he was honourably acquitted of all the charges. 2. Prosecution cases, as reveals from the record, is that on 21.10.2000 at about 11 A.M. the prosecutrix was returning from the river Bantuli after taking her bath. She is an 'Adivasi' woman and was wearing a sari alone. When she came upon the river-bank, she was obstructed by the three accused persons. While demanding for sex with her, one of the accused showed a sickle to terrorise the victim. On her attempt to snatch away the sickle, she sustained bleeding injury on her fingers. Thereafter she was forcibly lifted on to the nearby bush and was made to lie on the creepers on the ground and was ravished by the accused persons one after the other. After the first round of sexual intercourse was over by each of the accused, one of them did it for the second time and when the second one was involved in the act, the victim (P.W.1) could hear the sound of a person coming to the river 'Ghat'. Thus, she shouted for help and Purushottam Mallik, a co-villager of P.W.1 responded from the footpath. At that, the accused persons fled away. Being alone, Purushottam Mallik could not dare to chase them. P.W.1 narrated the incident to him and thereafter again washing herself she returned to home. Thus, she shouted for help and Purushottam Mallik, a co-villager of P.W.1 responded from the footpath. At that, the accused persons fled away. Being alone, Purushottam Mallik could not dare to chase them. P.W.1 narrated the incident to him and thereafter again washing herself she returned to home. She narrated the incident to her husband's elder brother's wife, i.e, P.W.3, and she consoled her and advised to wait till their husbands return from the jungle. At about mid night time when her husband (P.W.2) returned from the forest, then she narrated the incident to him. After consoling her, P.W.2 went to attend a funeral function in his sister's house in his village and returned to the village on the following day (22.10.2000) at about 9 a.m. Then he intimated the aforesaid incident to the co-villagers including P.Ws. 4, 5 and one Chakradhar Mallik. On the next day, i.e., on 23.10.2000 the aforesaid three persons together with P.W.1 and her husband P.W.2 proceeded towards the village of the accused persons, i.e., Kesharipatna. At the village square P.W.1 saw the three culprits standing and identified them. Chakradhar Mallik had known them previously and therefore he questioned them as to why the accused persons ravished P.W.1. At this the accused persons retaliated and because of the blow dealt by accused Krushna, Chakradhar sustained injuries and succumbed. It may be noted here that, for the aforesaid incident a separate sessions case was booked and the accused persons were tried separately for the charge u/s 302/34, I.P.C. After the aforesaid violence by the accused persons, police reached at the spot and P.W.1 and her companion who had scattered in the meantime again come to the spot on seeing the police and there P.W.1 verbally reported the incident of gang rape and that was reduced to writing by the Investigating Officer. Ext.1 is that F.I.R. 3. After receipt of the F.I.R. the Investigating Officer separately investigated into the case of rape and conducted usual investigation. During that phase he sent the victim and the accused persons (after their arrest) for medical examination by the doctor, visited the spot and seized the incriminating materials. Ext.1 is that F.I.R. 3. After receipt of the F.I.R. the Investigating Officer separately investigated into the case of rape and conducted usual investigation. During that phase he sent the victim and the accused persons (after their arrest) for medical examination by the doctor, visited the spot and seized the incriminating materials. He also received the report of the Medical Officer (P.W.14) and the loose hair (public hair) recovered during the examination of each of the accused persons together with the sample hair of P.W.1 and forwarded the same along with other seized articles to the State Forensic Science Laboratory. On completion of the investigation, the Investigating Officer (P.W.13) submitted the charge sheet. Since P.W.1 is an 'Adivasi' woman, therefore, in addition to the offence u/s 376(2)(g), I.P.C. charge-sheet was also submitted for the offence u/s 3 of the S.C. & ST. (P.A.) Act. 4. Denying to the charge, the accused persons claimed for trial. 5. To substantiate the charge, prosecution relied on the oral evidence of P.Ws.1 to 14 and the documentary evidence Exts.1 to 23 so also the Material Objects like broken bangles, earing apparels of the accused and the prosecutrix, etc. marked M.Os. I to VI. No evidence whatsoever was adduced by the accused persons. 6. Amongst the witnesses examined as noted above, P.W.1 is the prosecutrix and she is the sole eye-witness to the occurrence. P.W.2 is her husband and he accompanied P.W.1 together with P.Ws.4 and 5 to village Kesharipatna. P.W.3 is the sister-in-law (husband's elder brother's wife) of P.W.1. According to P.W.1, soon after the occurrence of returning to the house she narrated the incident to her. P.Ws.6 and 7 are two co-villagers of the accused persons and they have been examined by the prosecution to prove extra judicial confession of the Appellants. P.Ws.8, 9 and 10 are the witnesses to some of the seizure lists. P.W.11 is the Tahasildar, who deposed in favour of the identity of P.W.1 as a person belonging to Scheduled Tribe. P.W.14 is the Doctor, P.W.12 is the Investigating Officer and P.W.13 is the S.D.P.O. who submitted the charge-sheet. The documentary evidence shall be mentioned in detail as and when they are found relevant. P.W.11 is the Tahasildar, who deposed in favour of the identity of P.W.1 as a person belonging to Scheduled Tribe. P.W.14 is the Doctor, P.W.12 is the Investigating Officer and P.W.13 is the S.D.P.O. who submitted the charge-sheet. The documentary evidence shall be mentioned in detail as and when they are found relevant. Learned Sessions Judge, on appreciation of the evidence on record, did not accept the criticism of the defence on the credibility of P.W.1 for granting protection to accused Landa @ Nilamadhab Behera and also to the contradictions regarding the manner in which the concurrence was alleged to be framed and about the unreliability of the extra judicial confession. At the same time, finding the evidence of P.W.1 to be credible being corroborated by her husband and P.Ws.3 to 7, he recorded the finding against the Appellants to be guilty of the offence u/s under Section 376(2)(g), I.P.C. Since P.W.1 exonerated accused Nilamadhab by stating that he was not present at the spot nor had ravished her, therefore, that accused was acquitted from the charge. 7. Learned Counsel for the Appellants after placing the entire evidence on record and the finding recorded by the trial Court, argues that the trial Court has mechanically accepted the version of P.W.1 to be the gospel truth without screening the same with due application of mind. According to him, when P.W.1 knew about the identity of the three accused persons by the time of lodging of the report, she did not mention the name of the accused persons in the F.I.R. He further argues that Purushottam Mallik, the witness how the accused persons running away from the spot while P.W.1 was lying on the ground being ravished, no explanation has been offered by the prosecution for his non-examination. Evidence of that witness had a strong presumptive value to corroborate or contradict the statement of P.W.1, and under such circumstance adverse inference should be drawn against the prosecution for his non-examination. He further argues that the evidence of P.Ws.6 and 7 and the extra judicial confession stated to be made before them is wholly unreliable and the medical evidence and the report from the Forensic Science Laboratory about no connection between the hazir seized from the accused persons tallying with the public hair of P.W.1 gives the tale tell circumstance that accused persons are not guilty of the offence. Learned Counsel for the Appellants further argues that minus the offence u/s 3 of the S.C. & S.T. (P.A.), offence u/s 376(2)(g), I.P.C. being triable by the Court of Assistant Sessions Judge, learned Additional Session Judge should not have undertaken the trial. 8. Mr. A.K. Mishra, learned Standing Counsel, on the other hand argues that the F.I.R. and the evidence of P.W.1 does to run contrary to each other nor there was any attempt to conceal the name of the accused persons and, therefore, no benefit should go in favour of the accused persons. He states that the conduct of P.W.1 in exonerating the accused Landa @ Nilamadhab cannot be and should not be regarded as the ground so as to grant favour in favour of the Appellants when the charge against them is substantially proved through the evidence of P.W.1 and when her evidence is required to be accepted without searching for consideration. Learned Standing Counsel, however, agrees to the criticism on the evidentiary value and credibility value of P.W.7, but at the same time he argues that minus that evidence also the evidence led by the prosecution is sufficient to prove the charge against the Appellants. In that respect his further argument is that the report from the Forensic Science Laboratory showing non-matching of pubic hair does not in any way take away the merits of the prosecution case and proof of the accusation against the accused. Accordingly he argues to maintain the order of conviction. Learned Standing Counsel also argues that the Additional Sessions Judge is not devoid of jurisdiction even if the offence u/s 3 of the S.C. & S.T. (P.A.) Act is eliminated. Accordingly he argues to dismiss the appeals. 9. It is needless to say that a case is to be decided on the basis of facts and evidence available on record and not by following abstract ideals or ideologies. In this case narration of events in the F.I.R. indeed discloses the names of three accused persons though not at the outset but in the body of the F.I.R. itself. Therefore, accused persons cannot take advantage of that fact situation so as to criticise the F.I.R. or its credibility on the ground that names of the accused persons have not been noted in the F.I.R. 10. Therefore, accused persons cannot take advantage of that fact situation so as to criticise the F.I.R. or its credibility on the ground that names of the accused persons have not been noted in the F.I.R. 10. In the F.I.R., P.W.1 clearly alleged the fact of obstruction by three accused persons and commission of rape by each of them one time each and two of them in the second round. When the case came to the trial, for reasons best known to P.W.1 and her husband (P.W.2), both of them resiled from the prosecution case so as to grant protection to accused Landa @ Nilamadhaba Behera. P.W.1 stated in so many words that accused Nilamadhab was not present at the spot of occurrence nor he ravished her. If she would have stated that much and should not have eliminated rape by a third person, then perhaps taking into consideration her backwardness and Illiteracy the Court could have taken a lenient view so as to rely OH her evidence. But when she has eliminated the presence of the third accused and stated in her deposition only about cohabitation by two accused, then that gives a circumstance to consider her credibility and reliability. Learned Addl. Sessions Judge unfortunately did not look into this conduct of P.W.1 nor made any observation nor assigned any reason as to how inspite of that deficiency her evidence is credible and reliable. On a careful reading of her deposition and the F.I.R., Ext. 1, we find that she has substantially changed the allegation so as to protect accused Nilamadhab Behera and therefore when she has become choosy in making allegation, we do not find any confidence in her so as to rely on her evidence. Apart from that, as rightly criticized by the defense, prosecution is without any answer for withholding witness Purushottam Mallik, who was only occurrence witness available to provide corroboration to the evidence of P.W.1. We find on record that notwithstanding the fact that P.W.3 did not support the prosecution case, learned Addl. Sessions Judge recorded that she has supported the prosecution case by stating that the occurrence took place. What is that occurrence that was not stated by P.W.3 and, therefore, learned Additional Sessions Judge stretched such evidence of P.W.3 too far to find corroboration to the evidence of P.W.1. Sessions Judge recorded that she has supported the prosecution case by stating that the occurrence took place. What is that occurrence that was not stated by P.W.3 and, therefore, learned Additional Sessions Judge stretched such evidence of P.W.3 too far to find corroboration to the evidence of P.W.1. P.W.3 on the other hand has clearly stated that on that relevant date (date of occurrence) P.W.1, after returning from the bath, did not make any statement before her about rape. In the language of P.W.3, "I do not know anything of this case. Jhili has told nothing to me." She was subjected to leading questions by the prosecution and there she has again stated that, "It is not a fact that I stated to the I.O. that Jhili returned to house crying and on my asking, she told me that three young men raped her near the river while she was returning after taking bath at which I consoled her to wait till the return of Banara and his brother" The accused persons are of different villages, whereas the prosecutrix is a close relative of P.W.3. Therefore, there is no reason for P.W.3 to grant protection to the accused as against a heinous charge of rape on her brother-in-law's wife. Therefore, the evidence of P.W.1 also lacks corroboration from P.W.3. P.Ws.4 and 5 had no direct knowledge about the occurrence and their evidence is of no assistance in furtherance of the proof of charge u/s 376(2)(g), I.P.C. P.Ws.6 and 7, as rightly conceded by learned Standing Counsel, are not reliable to prove the extra judicial confession, in as much as by the time they state to have received the extra judicial confession, the occurrence of murder had already taken place and the accused persons had concealed their presence. Therefore, P.Ws.6 and 7 going to them and extracting the extra judicial confession is a far-fetched story. The report of the Doctor, P.W.14 indicates that loose hair was detected during the course of examination of the accused persons and that was sent for specialized opinion of the Forensic Science Laboratory. The opinion report in Ext. 16 reads that: Loose hair could be detected and preserved along with plucked pubic hair and dried soaked seminal fluid gauge. The report of the Doctor, P.W.14 indicates that loose hair was detected during the course of examination of the accused persons and that was sent for specialized opinion of the Forensic Science Laboratory. The opinion report in Ext. 16 reads that: Loose hair could be detected and preserved along with plucked pubic hair and dried soaked seminal fluid gauge. Under the given facts and circumstances when we find that the evidence of P.W.1 is not reliable the conviction of the Appellants for the offence u/s 376(2)(g), I.P.C. is not maintainable. Taking into consideration the totality of the facts, circumstances and evidence, we find it proper that benefit of doubt should be granted in favour of the accused persons and accordingly we acquit them from the charge u/s 376(2)(g), I.P.C. and they be released from the jail custody forthwith, if their detention is not required in connection with any other criminal case. 11. Before parting with the case, we feel it proper to answer the argument advanced by learned Counsel for the Appellants on the jurisdiction of learned Additional Sessions Judge to try the offence u/s 376(2)(g), I.P.C. The power conferred on the Court of Sessions for trial of the cases exclusively triable by the Court of Sessions are according to the degree of punishment, be it before the Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge. But a case triable by the Court of Assistant Sessions Judge if tried by the Additional Sessions Judge, then that does not amount a trial without jurisdiction because it is not illegal. On the other hand, even if the Court of Assistant Sessions Judge is within the meaning of a Court of sessions, but it cannot undertake trial of the offences which are exclusively triable by Sessions Judge or Additional Sessions Judge. In that case only it will be illegal and without jurisdiction. Such being not the case here, the contention of the Appellants challenging the jurisdiction of the Additional Sessions Judge is without any merit and accordingly rejected.