JUDGMENT P.K. Musahary, J. 1. The appellant, on being convicted under Section 376(2)(g), IPC and sentenced to under to R.I. for a period of 10 years with a fine of Rs. 10,000/- in default, further to undergo R.I. for one year vide impugned judgment and order dated 8.12.2009 rendered by the learned Addl. Sessions Judge (FTC), Kamrup Guwahati has preferred this appeal. The facts of the case leading to such conviction and sentence are that the prosecutrix was working in a PCO at Adabari, Guwahati. As usual she was returning from her work place on 30.09.2001 in a passenger bus from Adavari to her house at Dadara and while it arrived at Agiathuri the driver of the vehicle stopped the bus and asked the passengers to board another vehicle as it would not go further. It was at about 6 p.m., she got down from the bus at Agiathuri Gaonburah Chowk and when the prosecutrix stopped Auto Rickshaw, 5/6 unknown boys did not allow her to board the Auto rickshaw, instead they forcibly took her away by gagging her mouth by a piece of cloth to a nearby field and all of them raped her one after another due to which she fell unconscious and after some time, when she regained sense, one person of that area took her home. On the following day she lodged an FIR with Hajo P.S. which was registered as Hajo P.S. Case No. 216/2001 under Section 376, IPC. During investigation it came to light that the accused Jon Ali, Moinul Ali, Mojaffor Ali, Tayab Ali, Baitullah and Bhaity Ali were involved in the crime. All the said accused persons, except Bhaity Ali, were arrested and forwarded to judicial custody. A test identification parade was held for identification of the accused person by the victim/prosecutrix. On completion of investigation charge-sheet was submitted against the aforesaid accused persons showing accused Bhaity Ali as absconder. The case being committed, charges were framed under Section 376(2)(g), IPC to which, on being read over and explained, pleaded not guilty and claimed to be tried. The prosecution examined as many as 10 witnesses. The statement of the accused person were recorded under Section 313, Cr.P.C., who denied all the allegations made against them but they examined no witnesses in their defence. The prosecution examined as many as 10 witnesses. The statement of the accused person were recorded under Section 313, Cr.P.C., who denied all the allegations made against them but they examined no witnesses in their defence. On the basis of the evidence and documents on record, the learned Trial Court convicted and sentenced the present appellant as stated earlier. 2. Mr. S.K. Talukdar, learned counsel for the appellant submits that the learned Trial Court failed to properly appreciate the evidence on record and without correctly applying the law in accepting the evidence of the victim/prosecutrix convicted and sentenced the appellant solely on the basis of the evidence of the victim woman. According to him the evidence of the victim woman is inconsistent and full of contradictions which cannot be treated a reliable, acceptable and of sterling nature for conviction of an accused. Conviction and sentence based on such evidence, as submitted by the learned counsel for the appellant is unsustainable under the law and the appellant should be acquitted. 3. Mr. K. Munir, learned Addl. P.P. submits that there is neither inconsistency nor any serious contradictions in the evidence of the prosecutrix to render her evidence as unworthy of being accepted as reliable and truthful. According to him the learned Trial Court committed no lapse or wrong in appreciating the evidence on record and convicting and sentencing the accused. 4. I have gone through the records and scanned the evidence, particularly the evidence of the victim who was examined as PW-1 and the medical officer who was examined as PW-3 (A). The incident took place on 30.09.2001 at around 6 p.m. The FIR was lodged on the next day i.e. on 1.10.2001 which was received at 7 p.m. She was produced before the medical officer on duty in the Forensic Department of Guwahati Medical College on 2.10.2001 at 1-50 p.m. (Ext. 3) and she was medically examined. She was also produced before the Judicial Magistrate on 5.10.2001 and her statements were recorded under Section 164 Cr.P.C. 5. There was no delay in lodging the FIR inasmuch as it was lodged within 42 hours. The medical examination was done on 2.10.2001 at 1-50 p.m. i.e. after about 42 hours from the time of occurrence. TIP was conducted on 30.04.2002. In the said TIP accused Moinul, Mujaffor, Toybullah Ali and Baitullah Ali were produced. There was no delay in lodging the FIR inasmuch as it was lodged within 42 hours. The medical examination was done on 2.10.2001 at 1-50 p.m. i.e. after about 42 hours from the time of occurrence. TIP was conducted on 30.04.2002. In the said TIP accused Moinul, Mujaffor, Toybullah Ali and Baitullah Ali were produced. Amongst those accused persons only Mujaffor was identified by the victim. But during trial in the Court the victim pointed at Md. Mujaffor, Mainul, Taibullah Ali, Jon Ali as the persons who committed rape on her. 6. The acceptability of evidence of the victim woman is to be considered after close scrutiny and appreciation of her evidence read with the FIR, statement under Section 164, Cr.P.C., her deposition before the trial Court and also the medical report. In the FIR (Ext. 1) the accused persons, 5/6 in number, gagged her mouth with cloth and took her to the paddy field and on being gang raped by them she fell unconscious. Later on she regained consciousness and raised alarm. On hearing her alarm the person in the pig sty took her home. In the Section 164, Cr.P.C. statement she did not mention about her becoming unconscious or regaining conscious after being raped by aforesaid 5/6 boys. Two Bengali boys aged about 25/26 years from the pig sty, on hearing her alarm came and rescued her and took her to the pig sty where she was fomented with oil and got her dress dried whereas it was not at all mentioned in the FIR. As per her statements under 164, Cr.P.C., she could recognize only one boy who raped her along with other boys as she used to meet him while traveling in bus to Guwahati. In her evidence she also stated so. She clearly stated before the learned trial Court that she could not identify the remaining accused persons due to darkness. She also stated that she requested accused Md. Tayob Ali after the incident to take her home but she was abandoned at the paddy held. However, before the learned trial Court, while making her deposition she pointed at 4 accused persons namely Md. Mujaffor Ali, Moinul, Tayob Ali and Jon Ali as the culprits who raped her. She also stated that she requested accused Md. Tayob Ali after the incident to take her home but she was abandoned at the paddy held. However, before the learned trial Court, while making her deposition she pointed at 4 accused persons namely Md. Mujaffor Ali, Moinul, Tayob Ali and Jon Ali as the culprits who raped her. If the contents of the FIR, statement under Section 164, Cr.P.C. and evidence of the prosecutrix are read together, one can find discrepancies and contradictions in regard to identity of the accused persons. It may be noted that present convict appellant was identified at the TIP but he was not the person whom she used to meet while she was travelling in the bus to Adabari. It was Tayob Ali whom she used to meet in the bus while travelling to Adabari and he was supposed to be familiar/known to her whereas at the time of TIP she did not point at him as an accused. The contradiction is apparent as regards the identity of the accused persons insofar she deposed before the Court that could not identify the remaining accused persons due to darkness. If it is so, how can she say at the time of deposition before the Court on 1.11.2006 i.e. after about 5 years from the date of occurrence, with certainty that the aforesaid persons including the present appellant were involved in the gang rape. 7. Turning to the medical report (Ext. 3) it is found that the medical officer, Dr. R.K. Gogoi, PW-3(A) who examined the victim recorded his findings as under-- (1) her age was above 18 years and below 19 years. (2) Evidence of recent sexual intercourse is not detected on her person but she used to sex act. (3) No any violence injury mark detected on her person. The aforesaid medical officer in his deposition affirmed his aforesaid report. He further clarified that evidence of struggles was not detected. Looking at the specific allegation/charge that 5/6 persons committed gang rape upon her and she was gagged with cloth and was physically assaulted before commission of rape as she resisted them the prosecutrix should have received injury on her person. He further clarified that evidence of struggles was not detected. Looking at the specific allegation/charge that 5/6 persons committed gang rape upon her and she was gagged with cloth and was physically assaulted before commission of rape as she resisted them the prosecutrix should have received injury on her person. The medical evidence belies the victim's statement under Section 164, Cr.P.C. made before the Magistrate that she tried to resist the accused persons and begged them to let her go but they assaulted, slapped and thereafter all of them committed rape on her. The evidence is that due to such gang rape she became unconscious: It is difficult to understand how a woman who was physically assaulted before being gang raped and resisted the perpetrators, sustained no injury at all on her person. 8. The prosecution did not seize the wearing apparels of the prosecutrix to testify that her wearing apparels were torn in the gang rape. There is no explanation why her wearing apparels were not seized. Since the wearing apparels got wet as she moved through water in the field it may not be possible to find any semen or other material on her wearing apparels but it could have helped the prosecution to show that the culprits used force during the alleged gang rape. 9. There is a point to be noted. The aforesaid two Bengali boys who took the victim to the pig sty or shed and gave treatment and escorted her home in the night were not cited as witness although it was indicated in the statement recorded under Section 164, Cr.P.C. The first Investigating Officer P.W. 8 did not make it a point to visit the said sty/shed where the prosecutrix was taken and gave treatment by two Bengali boys. The Second Investigating Officer PW-9 also did not visit the said place during investigation. It was necessary to record the statement of the aforesaid persons in the pig sty to ascertain whether the victim woman did really visit the pig sty in the condition state as narrated by her and also whether she was escorted borne by them in the fateful night. It is quite distressful to note that the prosecution conducted the investigation in a casual and perfunctory manner. 10. It is needless to reiterate that in criminal trial the charge against the accused must be proved beyond all reasonable doubts. It is quite distressful to note that the prosecution conducted the investigation in a casual and perfunctory manner. 10. It is needless to reiterate that in criminal trial the charge against the accused must be proved beyond all reasonable doubts. Of course, in the trial connected with rape or gang rape the evidence of the victim girl woman must be given maximum weight and value. It is also needless to affirm that an accused charged under Section 376 (2)(g), IPC can be convicted solely on the basis of the evidence of the victim without even corroborated by medical or other evidence provided the evidence of the victim is found to be consistent, reliable, trustworthy and sterling in nature gaining confidence of the Court. The minor contradictions or significant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case as held in State of Punjab v. Gurmit Singh, reported in (1996) 2 SCC 384 but in the present case it is not found that the contradictions and inconsistencies discrepancies are not minor or in significant, rather they are serious in nature on the basis of which, in my considered view, the charge against the appellant, could be said to be proved. The evidence of the victim, as examined and appreciated is found to be not to the aforesaid standard. It suffers from inconsistencies and contradictions in material particulars and the same are not found to be trustworthy or believable for awarding any conviction not to speak of gaining the confidence of the Court. 11. What is more unbelievable is that there was no injury at all on the person of the victim/prosecutrix although she alleged that she was assaulted before she was gang raped and resisted the accused persons and became unconscious after being gang raped. The Apex Court had an occasion to decide a case of similar nature under Section 376 (2)(g), IPC in Lalliram and another v. State of Madhya Pradesh, reported in (2008) 10 SCC 69 . It was a case where allegations of gang rape by many persons and several times was made but no injury was noticed or found on the person of the victim The Apex Court observed that injury is not a sine qua non for deciding whether rape has been committed but it should be decided on the factual matrix of each case. It was however held that after the Court finds it difficult to accept the version of a prosecutrix on the face value it may search for the evidence direct or substantial. In the present case the offence of gang rape was committed in the darkness and as per the evidence of the victim herself, she could not identify any of the accused persons who really committed the gang rape. It is unusual and unbelievable that the victim who could not identify any accused person due to darkness at the time of committing the offence, she could identify any one of them during TIP and after 5 years of the alleged occurrence, she could recollect the faces of the culprits and point at them as accused persons standing in the dock. These are wholly contradictory and unbelievable and I am not inclined to accept it as an acceptable piece of evidence for convicting the accused. 12. Apart from insincere and callous investigation by the prosecution, particularly in not seizing the wearing apparels of the victim and not interrogating the material witnesses like aforesaid Bengali boys and not citing them as witnesses to prove an important respect of the case as to how and under what situation/state the victim was found/recovered and how they happened to take her to the pig sty, the place where they used to live and later on escorting her home in the night, has left the charge not proved beyond reasonable doubt. Taking into account all the aspects discussed above, it can be said unhesitatingly that the charge against present convict/appellant under Section 376(2)(g), IPC has not been proved beyond reasonable doubt as per the standard set in the criminal trial. And, therefore, I hold that the prosecution miserably failed to prove the charge against the present convict/appellant and he is entitled to get an order of acquittal on benefit of doubt. Accordingly the present convict/appellant is acquitted of the aforesaid charge. He be set at liberty forthwith if his further detention is not required in connection with any other case. Appeal stands allowed. Return the LCR forthwith.