Anima Hazarika, J.:- Heard Mr. A. Sharif, learned counsel for the appellants. Also heard Mr. K.A. Mazumdar, learned Addl. PP, Assam, 2. Challenging the legality and validity of the judgment and order dated 21.7.2005 passed in Sessions Case No. 28/05 (arising out of GR Case No. 806/04) under Sections 366/376/34 of the Indian Penal Code ('IPC for short) by the Assistant Sessions Judge, Morigon whereby and whereunder the ap­pellants were convicted under Sections 366/376/34 i.e. and sentenced them to suffer rig­orous imprisonment ('RT for short) for 10 years on each offence and to pay a fine of Rs. 5,000/- on each offence, in default, RI for one year making it clear that both the sentences are to run concurrently, the instant appeal has been filed by the two accused ap­pellants. 3. The prosecution case, in brief, is that the prosecutrix lodged an FIR on 8.12.2004 before the Officer-in-Charge ('O/C' for short), Morigaon police station alleging inter alia that on 20.11.2004 at about 11 pm. while she came out to urinate, both the accused persons named therein gagged her mouth with cloth and forcibly carried her on a bicycle and com­mitted rape on her, by keeping her at different places The informant somehow managed to escape from the clutches of the accused per­sons on 8.12.2004 and came home and nar­rated the incident to her husband. She, there­fore, by submitting an FIR made a prayer be­fore the police to make an investigation and take neessary action against the accused persons. 4. On receipt of the aforesaid FIR, Morigaon PS Case No. 191/2004 under Sec­tions 366/376/34 IPC was registered against the accused persons. 5. Police after completion of the investi­gation, submitted charge sheet against the appellants under Sections 366/376/34 IPC. The offence being exclusively triable by the Court of Sessions, the same was committed to the Court of Sessions, Morigaon for trial vide order dated 13.4.2005 passed by the Judicial Magistrate, 1st Class, Morigaon and the same was registered before the learned Sessions Judge, Morigaon as Morigaon Sessions Case No.28/2005 which was entrusted to the learned Assistant Sessions Judge, Morigaon for disposal. Upon perusal of the materials available on record and after hearing the parties, the learned trial Court framed charge under the aforementioned sections against both the appellants. The charges so framed being read over an explained to the accused appellants, they denied the same and claimed to be tried. Upon perusal of the materials available on record and after hearing the parties, the learned trial Court framed charge under the aforementioned sections against both the appellants. The charges so framed being read over an explained to the accused appellants, they denied the same and claimed to be tried. Both the appellants sur­rendered before the learned Court below on 27.1.2005. Their prayer for bail was rejected, directing to proceed with the trial. 6. To bring home the charges, prosecu­tion examined as many as 8 witnesses includ­ing PW-7, Medical Officer and PW-8, In­vestigating Officer ('I/O' for short). However, defence did not adduce any evidence. De­fence plea is of complete denial. 7. Considering the evidence on record and after hearing the parties, learned trial Court passed the impugned judgment and order dated 21.7.2005 and sentenced the accused appellants as indicated hereinabove. 8. Being aggrieved by the aforesaid judg­ment and order, the instant appeal has been filed challenging the legality and validity of the same. 9. Appearing on behalf of the appellants, Mr. Sharif, learned counsel has urged that while passing the impugned judgment and order, the learned trial Court measurably failed to appreciate the evidence on record which caused miscarriage of justice and also preju­dice to the appellants. Learned counsel fur­ther urged that the Court below has failed to consider the vital and major contradictions of the evidence adduced by the prosecution wit­nesses and in the instant case prosecution has failed to prove the guilt of the accused appel­lants beyond reasonable doubt, The proceed­ing of Sessions trial also vitiated due to non-compliance of provision of Section 313 CrPC, inasmuch as, while examining the accused persons under Section 313 CrPC, learned trial Court did not put any specific question on the material points that appeared against the appellants in order to provide them rea­sonable opportunities to prove their innocence by offering explanation thereon. Hence, sub­mitted Mr. Sharif that the impugned judgment and order is liable to be set aside and quashed and the appellants be acquitted from the charges framed against them. 10. Per contra, Mr. Mazumdar, learned Addl. PP, Assam has supported the impugned judgment and order and submitted that learned trial Court has passed the impugned judgment and order after going through the evidence on record which has been elaborately discussed in the judgment and hence, no interference is called for. 10. Per contra, Mr. Mazumdar, learned Addl. PP, Assam has supported the impugned judgment and order and submitted that learned trial Court has passed the impugned judgment and order after going through the evidence on record which has been elaborately discussed in the judgment and hence, no interference is called for. More so, the of­fence under Section 366/376 IPC commit­ted by the accused appellants is against a married woman. 11. I have considered the arguments ad­vanced by the learned counsel appearing for the parties. Hence, before coming to any con­clusion, let us scan the evidence adduced on behalf of the prosecution. PW-1 is the prosecutrix, whohas deposed that 6-7 months back on the night of the occurrence, at 1/2-00 AM, white she came out to urinate both the accused appellants gagged her mouth by cloth and took her- away in a bicycle. On the way, accused appellant, Safhur committed rape on her. After him, accused Zakir committed rape on her. Thereafter, both the accused appellants took her to different places and kept her on confinement for 18-19 days. She has further stated that during day time she was kept on confinement and in the night she was taken from one place to another place through paddy field and all along everyday they committed sexual inter­course with her. One day she was kept in resi­dence of one person from where she could manage to escape and reached her husband's house by enquiring people met on her way. She narrated the story to her husband. After hearing the story, her husband declined to take her back as his wife but when she in­sisted that she had been taken forcibly by the accused persons and raped, her husband agreed to accept her. Later on she lodged the FIR before Morigaon Police Station where police interrogated her and she was exam­ined by the doctor. Her statement was also recorded by the Magistrate. During cross-examination, she has de­posed that she does not know the name of the village where she was kept lastly by the accused appellants. She also does not know as to how many people were there in that house. During the period of 18-19 days, the victim woman was, kept in 15 different places. But she did not tell anybody about the inci­dent. She denied the suggestion that she has no good relation with her husband. She also does not know as to how many people were there in that house. During the period of 18-19 days, the victim woman was, kept in 15 different places. But she did not tell anybody about the inci­dent. She denied the suggestion that she has no good relation with her husband. She has also specifically stated that she did not know the accused appellants from before. She came to know them on and from the day of occur­rence only. She has also denied the fact that she was assaulted by her husband and for that reason on the day of occurrence, she went to her father's residence at Mayong and her husband took her back after writing some­thing on the paper. 12. PW-2 is the mother-in-law of the pros­ecutrix. She has deposed that she knows the accused persons as they are her neighbours. She has further stated that on the day of occurrence, at about 1-2 am, she was sleeping with her daughter-in-law, the prosecutrix. When she did not find her daughter-in-law in bed, she made hue and cry and the villagers after hearing her hue and cry rushed to their house. On the next day morning, she informed the villagers about the incident. After 18 days of the incident, her daughter-in-law came to her house at 8-9 pm. At that time, her husband and son were present at home. The pros-ecutrix told that the accused appellants did bad works with her. After hearing the incident, they lodged the FIR in the police station. During cross-examination, she has de­posed that the residence of the accused per­sons is contiguous to her house. She has fur­ther deposed that her son married the pros-ecutrix one year four months back and her daughter-in-law, i.e. the prosecutrix knew the accused appellants very well, they being her neighbour. The accused appellants have been residing at that place for last 13 years. There is no other case against the accused appellants except this case. The suggestion put to her that they have some land dispute with the accused appellants has been denied by her. 13. PW-3 is the husband of the prosecu­trix. He has also deposed that house of the accused appellants are near to their house. There is no other case against the accused appellants except this case. The suggestion put to her that they have some land dispute with the accused appellants has been denied by her. 13. PW-3 is the husband of the prosecu­trix. He has also deposed that house of the accused appellants are near to their house. On the day of occurrence, he was working in a brick field at Digboi and by telephonic mes­sage from his mother he came to know that his wife was missing. After one week of get­ting the message, he came to his house. On search of different places he could not find out the prosecutrix. After 7-8 days of his com­ing to his house, prosecutrix- came and she told about the incident. After hearing the same, he took her to the Morigaon Police Station, where she lodged the FIR before the O/C. During cross-examination, PW-3 has de­posed that his mother informed about the missing of his wife. After one week of the in­cident, he came to his house. He has further deposed that his father- in-law's house is at Mayong, Buraburi. He has also deposed that he has no bad relation with the accused ap­pellants. The accused appellants are married persons having children and why they have done this with his wife he does not know. He deposed that his wife did not tell him as to in which village or in which place she was kept by the accused appellants. 14. PW-4 is the co-villager of PW-1. He has deposed that on night of occurrence, af­ter hearing the hue and cry of PW-2, he came out from his house and came to know that the daughter-in-law of PW-2 was missing. While he was going on the road, after ½ an hour of the incident, the accused appellants came to him and when he told them about the incident and asked them to search for the prosecutrix, on the next day morning, they informed him that on being searched, they could not trace out the prosecutrix. During cross-examination, he has specifi­cally stated that he saw the accused appel­lants in their house after the incident. 15. Evidence of PWs-5 and 6 is not rel­evant. They are only hearsay witnesses. 16. PW-7 is the doctor, who examined the prosecutrix on 8.12.2004 and found as follows: "1. Secondary sex character - well devel­oped. 2. During cross-examination, he has specifi­cally stated that he saw the accused appel­lants in their house after the incident. 15. Evidence of PWs-5 and 6 is not rel­evant. They are only hearsay witnesses. 16. PW-7 is the doctor, who examined the prosecutrix on 8.12.2004 and found as follows: "1. Secondary sex character - well devel­oped. 2. Teeth mark found in the left breast. 3. Nail marks found in the back. 4. Teeth-7/7x7/7 On examination of private parts found as follows:- 1. Hymen is torn. No induratio and erythema found. 2. No semen stain found in the inner thighs, vulva or vagina and inner garments. 3. No injury marks seen in her private parts. Urine for pregnancy test - positive. Radiological test vide X-ray plate No. 106,. 107, 108 and 109 dated 27.1.2005 as opined by Radi­ologist-age is above 18 years. Inference: 1. Evidence of penetration in the vagina. 2. Nail marks in the back and teeth mark in the left breast is found. The marks are healed. 3. The girl carries first trimester of preg­nancy." During cross-examination, PW-7 deposed that the prosecutrix was pregnant of about 12 weeks. 17. PW-8, who is the I/O, deposed that on 8.12.2004, the prosecutrix lodged an FIR in Morigaon Police Station which was regis­tered as Morigaon PS Case No. 191/2004. The O/C of the Morigaon Police Station en­trusted the case to him for investigation and accordingly, he took up investigation. During investigation, he went to the place of occur­rence, drew the sketch map, recorded the statements of the witnesses and sent the pros­ecutrix to the doctor for medical examination and also sent her to the Court for recording her statement under Section 164 CrPC. In the meanwhile, the accused persons surren­dered before the Court and they were taken into custody. After completion of investiga­tion, submitted charge sheet under Sections 366/376/34 IPC. During cross-examination, he has deposed that houses of the prosecutrix and accused appellants are contiguous. He was told that the prosecutrix was not in house for 18 days after the incident and the prosecutrix stated before him that she was kept by the accused appellants at 15 different places at village Gariabasti. However, the I/O did not inquire and go to the places. 18. In the statement recorded under Sec­tion 313 CrPC, the accused appellants de­nied the charges leveled against them. However, the I/O did not inquire and go to the places. 18. In the statement recorded under Sec­tion 313 CrPC, the accused appellants de­nied the charges leveled against them. Their specific plea was that for previous grudge this false case has been instituted against them. In the statement of the accused appellants un­der Section 233(1) CrPC, they have stated that they had submitted certificates of local Gaonburha of village Buraburi and village Domal, which will prove the innocence of the accused appellants. 19. On scanning the evidence of the pros­ecution witnesses, it has been clear that there are some vital contradictions on the evidence adduced by the prosecution witnesses, inasmuch as, the prosecutrix specifically stated that she did not know the accused appellants before the date of incident. On the other hand, PWs- 2,3 and 4 in unison have stated that houses of the accused appellants and the prosecutrix are contiguous and the prosecu­trix knew the accused persons being neigh­bour. Secondly, PW4 has specifically stated that on the night of the incident, while he was going by the road, he met both the accused appellants after about ½ an hour of the inci­dent and PW 4 asked them to trace out the missing daughter-in-law of PW-2 and both the accused appellants came to him on the next day morning and informed him that on being searched, they could not trace out her. Thirdly, PW-2, mother-in-law of the prosecu­trix informed PW-3, i.e. the husband of the prosecutrix about missing of his wife and af­ter seven days of getting the information of missing of his wife, PW-3 came to house and searched for his wife. However, he did not lodge any FIR before the polce and only when the prosecutrix came back after 18 days of the incident, they lodged the FIR. Fourthly, prosecutrix has stated that she was kept in 15 different places by the accused appellants. However, during this long period, she could not tell anybody that the accused appellants had kidnapped her and she had been wrong­fully confined and that she had been raped everyday. Fifthly, she was kept in a place wherefrom she could come home running; meaning thereby that she was kept in a nearby village or nearby place of her residence. However, during this long period, she could not tell anybody that the accused appellants had kidnapped her and she had been wrong­fully confined and that she had been raped everyday. Fifthly, she was kept in a place wherefrom she could come home running; meaning thereby that she was kept in a nearby village or nearby place of her residence. It it really surprising that a married lady being taken by two persons in a bicycle at night and kept her in 15 different places, but she could not tell anybody that she was kidnapped by the accused appellants. 20. Situated thus, I hold that the evidence given by PWs 1,2 and 3 is highly unreliable; even if their evidence is not rejected outright as wholly unreliable, their evidence will fall at the most, in the category of those witnesses, who are neither wholly reliable, nor wholly unreliable, 21. In the case of Narayan @ Naran Vs. State of Rajasthan reported in (2007) 6SCC 465, the Apex Court held that for conviction under Section 376 IPC, evidence of the prosecutrix must be truthful and trust­worthy. The facts and circumstances of the case appearing in the instant case must be considered to find out whether the evidence of the prosecutrix is truthful and trustworthy or the accused persons are entitled to be acquitted. 22. In the case of State of Rajasthan Vs. Kishanlal reported in (2002) 5 SCC 424 , it has been held that for conviction under Sec­tion 376 IPC, it is to be seen whether the prosecutrix is trustworthy. 23. In the case of Sonmoni Bordoloi Vs. State of Assam, reported in 2002 (3) GLT 266 at para 64 it has been held as thus: "It Is true that the prosecutrix shall not be regarded as an accomplice and the Court must not insist on corroboration of her evidence from any other quarter. However, at the same time, it is also equally true that if the testimony of the prosecutrix suffers from infirmity, the convic­tion of the accused cannot be founded on such evidence, particularly, if the same is contradicted by the medical evidence on record, as the case at hand is and also other evidence on record. Reference may be made to Di lip & Anr. Vs. State of MP (2001) 9 SCC 452 . Reference may be made to Di lip & Anr. Vs. State of MP (2001) 9 SCC 452 . In the case at hand, the evidence of the prosecutrix being not only self- contradictory but the same having also been contradicted by the evidence of her son and other evidence on record including the medical evidence, it is clearly far from being safe to make such testimony a basis for conviction of the accused. Situated thus, I am firmly of the view that the accused appellants ought to have been accorded, at least, benefit of doubt by the learned trial Court." 24. At this stage, I am tempted to recall the observation of the Apex Court in Kali Ram Vs. State of Himachal Pradesh re­ported in AIR 1973 SC2773 which reads as follows: "It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an inno­cent person. The consequences of the convic­tion of an innocent person are far more serious an its reverberations cannot but be felt in a civi­lized society. At this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent per­son. Some risk of the conviction of the inno­cent, of course, is always there in any system of the administration of criminal justice. Such a risk can be minimized but not ruled out alto­gether." 25. In the result and the for the reasons discussed above, the appeal succeeds. The impugned judgment and order of conviction and sentence is set aside. The prosecution could not prove the guilt of the accused ap­pellants beyond all reasonable doubt. The appellants are, therefore, held not to be guilty of the offences and by following the principle of benefit of doubt they are acquitted of the charges leveled against them. 26. It is stated at the Bar that the accused appellants are in jail since their date of surrender, i.e. 27.1.2005. They are set at liberty forthwith if not wanted in any other case. 27. Send down the lower Court.