JUDGMENT P.K. Musahary, J. 1. Heard Mr. R. Sekhar, learned Counsel for the convict Appellants. Also heard Mr. B.B. Gogoi, learned Addl. Public Prosecutor, for the Respondent State of Assam. 2. This appeal has been preferred by 2(two) of the 5(five) accused persons, convicted by tie Court of Addl. Sessions Judge (FTC), Lakhimpur, North Lakhimpur, vide Judgment dated 29.06.2007 in Sessions Case No. 27 (NL) 03, convicting them under Sections 457 / 376(2)(g) IPC and sentencing them to undergo R.I. for 3 years and to pay a fine of Rs. 2000/-, in default of payment of fine, to suffer R.I. for a further period of 2 months for the offence under Section 457 IPC and further to undergo R.I. for 10 years and to pay a fine of Rs. 5000/-, in default of payment of fine, to suffer R.I. for a further period of 2 months for the offence under Section 376(2)(g) IPC both sentences to run concurrently. The prosecution case, in brief, is that in the night of 15.03.2002, the FIR named accused persons forcefully entered into the house of informant and threatened her and her daughter Smt. Purnima Sutradhar. While Smt. Purnima Sutradhar managed to flee away from the house, the informant was allegedly gang-raped by the accused persons. On receipt of the FIR, police registered Dhakuakhana P.S. Case No. 30/2002 under Sections 457 / 376(2)(g) / 506 IPC and launched investigation. During the investigation the I.O. sent the informant victim woman for medical examination, examined some of the witnesses, arrested the accused persons and on completion of the investigation, submitted charge sheet against 5 (five) accused persons, namely, Prasanta Bharali, Ranjan Saikia, Niranjan Rajkhowa, Joy Ch. Chutia and Bupan Saikia. The case being committed, the learned Court of Sessions framed the charge against the aforementioned accused persons under the relevant sections of Indian Penal Code, as noted above. On being explained, the accused persons pleaded not guilty and claimed to stand trial. The prosecution, in order to establish its case, examined as many as 6 (six) witnesses including the informant victim woman. The accused persons examined none in their defence. After conclusion of the trial, on consideration of the materials and evidence on record and upon hearing the learned Counsel for the parties, the learned trial Court passed the Judgment, dated 29.06.2007. convicting and sentencing them, as stated above. The accused persons examined none in their defence. After conclusion of the trial, on consideration of the materials and evidence on record and upon hearing the learned Counsel for the parties, the learned trial Court passed the Judgment, dated 29.06.2007. convicting and sentencing them, as stated above. Out of the 5(five) convicts, only 2(two) of them, namely, Prasanta Bharali and Niranjan Rajkhowa, are before this Court in appeal. 3. For disposal of this appeal. I would like to refer to and examine the FIR. statement of the informant victim woman under Section 164 Code of Criminal Procedure, her oral evidence, and the evidence of Medical Officer, for the purpose of testing the veracity and reliability of the evidence of the informant victim woman. 4. In the FIR (Ext. 1), it is alleged that the accused persons in the night of 15.03.2002, at about 12 O'clock, came and entered into the informant's house forcefully and woke her from sleep. Then they threatened to kill her daughter Smt. Purnima Sutradhar, aged about 16 years, and they were brought outside the house. However, her daughter, aforesaid, could escape from the clutches of the accused persons. But, they committed gang rape on the informant and thereafter left the place of occurrence. On 20.03.2002, the informant victim woman was produced before the SDJM (Sadar), North Lakhimpur, before whom, she made statement, which was recorded under Section 164 Code of Criminal Procedure. In the said statement, she gave narration as to how she was raped by the accused persons. It is to note that in her statement under Section 164 Code of Criminal Procedure, she stated that the accused persons had sexual intercourse with her, against her will and inside her house. Thereafter, she was dragged outside the house and was again raped at the nearby paddy field, by force. The informant victim woman was examined as PW 4. Before the trial Court, she deposed that in the said night of incident, she was sleeping with her 2 minor sons, aged 7 years and 2 years respectively. She further stated that her daughter Smt. Purnima Sutradhar was also present at home at the time of incident but she later on, managed to flee from the scene. She gave detailed narration as to how she was gang raped by the accused persons inside and outside her house. 5. She further stated that her daughter Smt. Purnima Sutradhar was also present at home at the time of incident but she later on, managed to flee from the scene. She gave detailed narration as to how she was gang raped by the accused persons inside and outside her house. 5. The informant victim woman's daughter Smt. Purnima Sutradhar was also produced before the SDJM (Sadar), North Lakhimpur, on 20.03.2002, and her statement was recorded under Section164 Code of Criminal Procedure. In her statement, she stated that the accused persons came to their house in the night of 15.03.2002, at about 12 O'clock, and one of the accused, namely, Niranjan Rajkhowa caught her by hand. She stated that Niranjan Rajkhowa was accompanied by 3(three) other boys and they entered into the house by breaking the door and that she, somehow, managed to free herself from the clutches of Niranjan Rajkhowa and flee away therefrom, to the house of one Samu Dev and took shelter there. In the next morning, she could learn from the people that the accused persons committed some misdeed with her mother (informant victim woman). She also stated that she saw her mother with mud on her person and with tattered clothes. 6. The Medical Officer, Dr. Bhabesh Gogoi, was examined as PW 6. According to him, on 16.03.2002, he, on police requisition, examined the informant victim woman at Dhakuakhana PHC. On examination of the victim woman, he found injuries, on her person, as follows: 1. On external examination: There were human teeth bite on the base of the right nipple. There were nail scratching marks in her both breasts and abdomen. 2. On vaginal examination: The whole perineum was tender, hymen was not found and bleeding per vagina was found. This bleeding was probably due to menstruation as stated. 3. On laboratory examination: Vaginal swab shows sluggishly motile sprematozoa. Remarks: Raped within 20-30 hours from the time of examination. 7. As per the medical evidence, it is proved and confirmed that the victim woman was raped. Now, the niggling question is as to who has committed the rape on informant victim woman. The victim woman while deposing before the trial court stated that for her livelihood, she worked as a day labourer. 7. As per the medical evidence, it is proved and confirmed that the victim woman was raped. Now, the niggling question is as to who has committed the rape on informant victim woman. The victim woman while deposing before the trial court stated that for her livelihood, she worked as a day labourer. She deposed that her two minor sons of 7 years and 2 years, were sleeping with her in the house in the night of incident and they cried for help when accused Ranjan Saikia forcibly raped her. She deposed that after she was raped by the accused persons, she came to the house of one Sri Cheniram Sutradhar, a neighbour. The accused persons too chased her but she was saved from them as the family members of Chairman Sutradhar told the accused persons that she was not in their house. Thereafter, she went to the house of one Sri Nagen Sutradhar, another neighbour, to whom, she confined the incident. She further deposed that she along with Sri Nagen Sutradhar informed the villagers about the incident. The villagers told her that they would go to the police station in the morning. In her examination-in-chief, she stated that before the 'rape incident' took place, her husband eloped with the wife of accused Ranjan Saikia and that her husband does not stay with her any longer. She deposed that, in her opinion, the 'rape incident' took place because of the elopement of her husband with the wife of accused Ranjan Saikia, In the cross-examination, she did not mention in the FIR that her daughter Smt. Purnima Sutradhar was at home in the night of the incident. She also stated that now her daughter Smt. Purnima Sutradhar has been married. 8. 3 (three) accused persons including the present Appellants and Joy Ch. Chutia were examined under Section 313 Code of Criminal Procedure wherein they have denied the allegations levelled against them. However, they stated that the informant victim woman is not a good character and she sells liquor and maintains clandestine relation with others. They also stated that the informant victim woman's husband eloped the wife of accused Ranjan Saikia and in this regard, on the said night of incident, when they visited the house of the informant victim woman for some information, she rebuked them belligerently. They also stated that the informant victim woman's husband eloped the wife of accused Ranjan Saikia and in this regard, on the said night of incident, when they visited the house of the informant victim woman for some information, she rebuked them belligerently. They, later in the next day, came to know that in the same night, somebody had raped the informant victim woman. They also stated that out of grudge, she mentioned them as accused persons without recognizing the real culprits. From the impugned judgment itself, it is found that accused Bupan Saikia and Ranjan Saikia did not appear before the Court and they were declared absconders. The other accused Joy Ch. Chutia, after filing hazira, at the time of pronouncement of sentence, fled away from the premises of the trial Court. The above named convicts are, thus, not before this Court. 9. In the charge sheet, the informant victim woman's daughter Smt. Purnima Sutradhar along with 5 (five) others, was cited as a witness but she was not examined by the prosecution. No explanation has also been offered by the prosecution as to why she was held back from being produced before the trial Court. According to the statement of Smt. Purnima Sutradhar, under Section 164 Code of Criminal Procedure, she was present in the house in the night of occurrence and she was caught by Niranjan Rajkhowa and she could somehow escape from the grip of the said accused person and fled away. If that was so, she was an important eye-witness, at least, to the stage of forceful entry of the accused persons in their house by breaking the door. She might have seen the other co-accused along with accused Niranjan Rajkhowa and she could have, to a certain extent, corroborated the evidence of the informant victim woman (her mother). But the informant victim woman herself contradicted her stand in the FIR by deposing before the learned trial Court that her daughter Smt; Purnima Sutradhar was not present in the house in the night of the incident. At the same time, the informant victim woman (PW 4) has deposed that her 2 minor sons, one of whom was 7 years old, were present in the night of the incident. At the same time, the informant victim woman (PW 4) has deposed that her 2 minor sons, one of whom was 7 years old, were present in the night of the incident. The minor boy of 7 years old, if he was actually present in the house in the night of the incident and saw the incident with his own eyes, could also be an important eye-witness. He, thereafter, could have been produced as an important eyewitness after testing him as to whether he was fit for giving any evidence but the prosecution has left-out this important eye-witness and seemingly remained complacent with the evidence of the informant victim woman and her 3 neighbours (PW 1, PW 2 and PW 3), who were in fact not the eye-witnesses to the said incident and whose evidence failed to lend support/corroboration with the informant victim woman's evidence. These PWs, merely, have stated before the learned trial Court what they heard from the informant victim woman only. 10. Generally, in a case of rape, eye witness is not available. But in the present case, at least, one minor boy of 7 years old was present at the time and place of occurrence and he was an eye-witness to the same. In such a scenario, child witness can also be produced. There is no bar, as such, in the criminal trial on examining a child witness. I may, in this regard, refer to the case of Suryanarayana v. State of Kerala, reported in (2001) 9 SCC 129 , wherein a girl of 4 years who was an eye-witness to the incident and 6 years at the time of her deposition, was produced and examined as an witness. In another case of Baby Kandayana v. State of Kerala reported in 1993 Supp. (3) SCC 667, two child witnesses were examined by the prosecution. The law requires that the child witness, before recording his/her evidence, must be tested by the trial Court asking him/her general questions and his/her testimony could be accepted if they withstand the cross-examination and conviction could be ordered on the basis of his/her sole testimony alone if the same inspires confidence of the Court so as to rule out any possibility of tutoring. The law is that the children are considered as most natural witness(s) and therefore, their evidence is acceptable by the Court. The law is that the children are considered as most natural witness(s) and therefore, their evidence is acceptable by the Court. In the instant case, the prosecution failed to take this advantage by examining the seven-year old child of the informant victim woman who could have stated the truth as he was an eye-witness to the ravishment of his mother by the accused persons. 11. It is in the evidence of the informant victim woman that there are neighbouring houses and her minor sons cried out for help while she was raped inside the house by the accused persons. It is also in her evidence that she was forcefully dragged outside her house and taken to the nearby paddy field where the accused persons again raped her. In the statement under Section 164 Code of Criminal Procedure, her daughter Smt. Purnima Sutradhar also stated that she some how managed to escape and took shelter in the house of one Sri Cheniram Sutradhar. If that was so, she could have cried out for help and could have asked some villagers to save her mother. It has been stated by PW 1, PW 2 and PW 3, that the accused persons were dangerous men. But could those 5 (five) accused persons really afford/dare to challenge the villagers if the villagers came out in horde. It will not be fair to make any comment on the character of the informant victim woman without any evidence on record but the Appellants have thrown some light in their statements under Section 313 Code of Criminal Procedure on her character as doubtful. The informant victim woman has also contradicted in, making statement on the material fact like presence of her daughter Smt. Purnima Sutradhar in the light of the incident. The informant victim woman clearly stated in the FIR that her said daughter was present in the house who later on managed to escape from the scene. In the cross-examination, the informant victim woman stated that the FIR was not written by her as she was an illiterate and the contents in the said FIR were also not read over and explained to her. It may be correct, for which, she deposed before the trial Court that her daughter, aforementioned, was not present. In the cross-examination, the informant victim woman stated that the FIR was not written by her as she was an illiterate and the contents in the said FIR were also not read over and explained to her. It may be correct, for which, she deposed before the trial Court that her daughter, aforementioned, was not present. But what about the statement under Section 64 Code of Criminal Procedure made by her daughter who categorically stated before the Magistrate on oath that she was present in the house when the accused persons entered into their house, forcefully, by breaking the door and she could somehow manage to run away from the scene. Could the statement of Smt. Purnima Sutradhar, daughter of the informant victim woman and 16 years of age, at the time of the incident/recording her statement, be discarded out-rightly? In my considered view, the categorical statement given by Smt. Purnima Sutradhar under Section 164 Code of Criminal Procedure cannot be left aside and outside the purview of consideration. It may, at least, be used, for the purpose of testifying the veracity of the evidence of the informant victim woman who has contradicted her own statements given in the FIR and deposition. 12. The evidence of Medical Officer confirming rape on the informant victim woman alone, cannot lead to a conclusion that the accused Appellants, herein, were involved in the commission of offence and they may be convicted for the same. The law permits conviction, without any corroboration, on the sole testimony of the prosecutrix/victim woman, if her evidence inspires confidence of the Court and appears to be natural and truthful. There are several decisions on this point, amongst which, I may refer to Vimal Suresh Kamble v. Chaluverapinake S.P. and Anr. reported in (2003) 3 SCC 175 . It is also well established principle of law that minor contradictions or insignificant discrepancies in the statements of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. This has been so held in the State of Punjab v. Gurmit Singh reported in (1996) 2 SCC 384 . reported in (2003) 3 SCC 175 . It is also well established principle of law that minor contradictions or insignificant discrepancies in the statements of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. This has been so held in the State of Punjab v. Gurmit Singh reported in (1996) 2 SCC 384 . In the present case, the contradictions in the material fact, namely, presence of her daughter (Smt. Purnima Sutradhar), 16 years old, in the evidence of the prosecutrix cannot be treated as a minor contradiction or an insignificant discrepancy taking into account that the prosecution although cited her (Smt. Purnima Sutradhar) as an witness, held her back from producing before the learned trial Court and thus, deprived the defence to cross-examine her. 13. In this regard, it may be apt to refer to the case of Habeeb Mohammad v. State of Hyderabad, reported in AIR 1954 SC 51 , wherein it is observed that if a material witness is deliberately or unfairly kept back, then, a serious reflection is cast on the trial itself and the validity of the conviction resulting there from it, may be open to challenge. Following the above, the Apex Court, in Narain v. State of Punjab, reported in AIR 1959 SC 484 , further observed, as follows: 13. It will be seen that the test whether a witness is material for the present purpose is not whether he would have given evidence in support of the defence. The test is whether he is a witness essential to the unfolding of the narrative on which the prosecution is based. Whether a witness is so essential or not, would depend, whether he could speak to any part of the prosecution case or whether the evidence led disclosed that he was so situated that he would have been able to give evidence of the facts on which the prosecution relied. It is not, however, that the prosecution is bound to call all witnesses who may have seen the occurrence and so duplicate the evidence. But apart from this, the prosecution should call all material witnesses. 14. As stated earlier, the minor son of 7 years, who, according to the prosecutrix herself, was present at the time and place of occurrence, was also not produced. But apart from this, the prosecution should call all material witnesses. 14. As stated earlier, the minor son of 7 years, who, according to the prosecutrix herself, was present at the time and place of occurrence, was also not produced. There is another important aspect which is found in the evidence of the prosecutrix that her husband eloped the wife of one of the accused, namely, Ranjan Saikia, and she herself stated that the rape incident took place due to the said elopement. The present Appellants have in their statements under Section 313 Code of Criminal Procedure stated that such incident of elopement actually took place and they have been simply implicated in the case out of grudge as because they have visited the house of the prosecutrix and enquired/sought information, from her regarding elopement of her husband with accused Ranjan Saikia's wife. 15. From the evidence of prosecutrix, it is found that she was staying alone with her children i.e. without her estranged husband, and that an enmity developed between accused Ranjan Saikia (husband of the lady whom prosecutrix's husband eloped) and husband of the prosecutrix. Because of such enmity, there may be a second view that accused Ranjan Saikia, in order to avenge, took the lead by way of committing rape on the prosecutrix with the help of accused Bupan Saikia and Joy Ch. Chutia, who have absconded since then, and they may be the real culprits. The present Appellants have faced the trial and are serving the sentence. There is no reliable and solid evidence to record conviction and sentence against them. The materials and evidence, on record, are not sufficient enough to convict and sentence them given the contradictory, unreliable, untruthful and unnatural testimony of the prosecutrix which has failed to gain the confidence of this Court. With this nature of testimony/evidence, on record, the prosecution cannot claim that it has proved its case, beyond all reasonable doubt, at least, in the case of the present Appellants. The present Appellants, namely, Prasanta Bharali and Niranjan Rajkhowa, are, therefore, entitled to get the 'benefit of doubt' and as such, they must get the order of acquittal. Consequently, the appeal succeeds. 16. The Appellants, namely, Prasanta Bharali and Niranjan Rajkhowa, are hereby directed to set at liberty, forthwith, if their detention, otherwise, is not required in connection with some other case. 17. Consequently, the appeal succeeds. 16. The Appellants, namely, Prasanta Bharali and Niranjan Rajkhowa, are hereby directed to set at liberty, forthwith, if their detention, otherwise, is not required in connection with some other case. 17. It is made clear that the other 3 (three) convicts, namely, Bupan Saikia, Joy Ch. Chutia and Ranjan Saikia, who are not before this Court, would not get the benefit of this judgment. 18. LCRs be remitted to the lower Court concerned. Appeal allowed