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2014 DIGILAW 880 (GAU)

Jay Chandra Chutia v. State of Assam

2014-09-17

PRASANTA KUMAR SAIKIA

body2014
Judgment Prasanta Kumar Saikia, J. 1. This appeal is against the judgment dated 29.6.2007, passed by the learned Addl. Sessions Judge (FTC), North Lakhimpur in Sessions Case No. 27 (NL) of 2003 whereby the present accused-appellant, namely, Sri Joy Chandra Chutia had been convicted of offence u/s. 457/376(2)(g) IPC as well as the order dated 27.09.2012 passed in the aforementioned case sentencing the accused-appellant to R.I. for 10 years and to pay a fine of Rs. 5,000/-, in default, R.I. for another one year and was also sentenced to suffer R.I. for 3 years and to pay a fine of Rs. 2000/-, in default, R.I. for 2 (two) months for offence punishable u/s. 457 IPC. Being aggrieved by the aforesaid judgment and order, the present appellant, Sri Joy Chandra Chutia (hereinafter referred to as accused person), preferred this appeal citing several infirmities in the judgment under challenge. 2. I have heard Mr. D. Das, learned senior counsel assisted by Mr. N.M. Hazarika for the appellant and Mr. B.J. Dutta, learned Addl. Public Prosecutor, appearing for the State. 3. The facts necessary for disposal of present appeal, in brief, are that on the night of 15.03.2012 at about 12 midnight, five persons, namely, (i) Nagendra Rajkhowa, (ii) Prasanta Bharali, (iii) Joy Chandra Chutia, (iv) Bhupen Saikia and (v) Ranjan Saikia made violent entry into the house of the informant (hereinafter referred to as a victim) and having put her and her teenage daughter in grave danger to their lives, took them to their courtyard and tried to commit rape on them. 4. Apprehending serious danger to her, the daughter of the victim someway freed herself from the clutches of the miscreants and fled the scene. However, the mother of the aforesaid girl was not that fortunate for which all the miscreants aforesaid subjected the victim to sexual intercourse and they did so, one after another. With the above allegations, an FIR was lodged with the O/C Dhakuakhana P.S. in the morning, next day. 5. On receipt of the FIR, O/C, Dhakuakhana P.S. registered a case vide Dhakuakhana P.S. Case No. 30 of 2002 u/s. 457/376(g)(2)/506 IPC and ordered one Bishnu Prasad Saikia to investigate the case. Being so ordered, the Investigating Officer visited the place of occurrence, examined the victim woman, her daughter and other people well acquainted with the facts and circumstances of the case. 6. Being so ordered, the Investigating Officer visited the place of occurrence, examined the victim woman, her daughter and other people well acquainted with the facts and circumstances of the case. 6. He also had the victim woman examined by the Doctor, did other needful and on conclusion of the investigation, he submitted charge-sheet u/s. 457/376(2)(g)/506 IPC against persons aforementioned. It may be stated that accused Bhopen Saikia & Rajen Saikia jumped the bail and as such, following the procedures prescribed by law, they were declared absconders and therefore, the case proceeded against other 3 (three) accused persons including present appellant. 7. In course of time, the Magistrate before whom the charge-sheet was so laid, committed the case to the court of Sessions since the offence u/s.376 IPC is exclusively triable by the Court of Sessions. On receipt of the case on commitment, the learned Sessions Judge, North Lakhimpur, transferred the case to the file of Additional Sessions Judge, FTC, North Lakhimpur for disposal in accordance with law. 8. On receipt of the case on transfer and on hearing the parties, Additional Sessions Judge, FTC, North Lakhimpur framed charge u/s. 457/376(2)(g)/506 IPC. Charges, so framed, on being read over and explained to the accused persons, they pleaded not guilty and claimed to be tried. During trial, prosecution examined as many as 6 (six) witnesses including the victim and the I/O. The statement of the accused persons were recorded u/s. 313 CrPC. 9. The accused plea was of total denial. They, however, did not adduce any evidence. On the conclusion of trial, the learned court below found the aforesaid three accused persons guilty of offence u/s. 457/376(2)(g) IPC. It may be stated that on the date, fixed for judgment, while accused Niranjan Rajkhowa and Prasanta Bharali remained present in the court to receive the judgment, the present appellant run away before pronouncing the judgment. 10. The trial court, therefore, delivered the judgment in presence of other two accused persons but in absence of appellant herein convicting all three accused persons u/s. 457/376(2)(g) IPC. While sentencing the accused Prasanta Bharali and Niranjan Saikia to suffer imprisonment for the offences aforesaid, the court below was also pleased to order issuance of warrant of arrest against the present appellant. 11. While sentencing the accused Prasanta Bharali and Niranjan Saikia to suffer imprisonment for the offences aforesaid, the court below was also pleased to order issuance of warrant of arrest against the present appellant. 11. In course of time, the present appellant was arrested and on his arrest, he was produced before the court below whereupon the trial court sentenced him to punishment for his committing offences u/s. 457/376(2)(g) IPC as aforesaid. In this appeal, the accused appellant has assailed the judgment rendered on 29.06.07 and the order dated 27.09.2007 in sessions case No. 27 (NL)/2003 citing several infirmities therein. 12. According to Mr. D. Das, learned senior counsel, the judgment under challenge is not sustainable for reasons more than one. In that connection, it has been stated that the evidence of prime prosecution witnesses, viz., PW 4, the victim, suffers from several infirmities of extremely serious in nature. In that regard, it has also been pointed out that story narrated in the FIR and story, told by the PW 4 before the court, during trial are profoundly inconsistent and contradictory. 13. In the FIR, it has been narrated that on the fateful night the accused persons went to the victim's house and making violent entry into her house, they first dragged her and her daughter to their courtyard where all the miscreants committed rape on her one after another, although her daughter somehow freed herself from the clutches of the miscreants and left their house. 14. However, this story was not supported by the victim woman during trial since she categorically told that on the night in question, her daughter was not in their house. That apart, victim further deposes that on the night in question, accused Ranjan first raped her inside her house and thereafter all the miscreants took her out of her house and raped in the nearby field one after another. 15. However, the infirmities in the prosecution case did not stop there. Rather more and more infirmities started afflicting the case under consideration. In that connection, it has been pointed out that in her evidence, PW 1, Elasi Sutradhar states that on the fateful night, the daughter of the victim woman was in her house (PW 1) and accused persons first came to her house and tried to drag the daughter of the victim girl out of her house. 16. In that connection, it has been pointed out that in her evidence, PW 1, Elasi Sutradhar states that on the fateful night, the daughter of the victim woman was in her house (PW 1) and accused persons first came to her house and tried to drag the daughter of the victim girl out of her house. 16. However, taking advantage of darkness, the daughter of the victim woman fled away. Such a tale, according to the learned senior counsel, gives a new twist to the prosecution stories, told and retold during investigation and trial since neither the victim woman nor her daughter support such story which makes the prosecution case even more doubtful. 17. The statement of the daughter of the victim was recorded by police in terms of Section 164 CrPC. In her statement, she states that on the fateful night, she was in her house. When the accused persons came to her house around the midnight and when they tried to enter their house, she ran away from house. Such statement has once again contradicted the prosecution stories which, as stated above, were told and retold during trial. 18. According to the learned counsel for the appellant, the evidence of the victim cannot be accepted for some other reason as well. During trial, she projected before the court some facts which she never narrated to the I.O. during investigation. In other words, the evidence of prime prosecution witness suffers from contradictions which again make her evidence unworthy of reliance. 19. That apart, the daughter of hapless woman was not examined, and that too, without assigning any reason although she appears to be one of the most important witnesses who could have thrown sufficient light on the matter under scrutiny. Equally important, two sons of the victim woman who reportedly witnessed the incident under consideration were not examined as witnesses. 20. Some other villagers who were reportedly aware of the incident in question were not examined. In that regard too, the prosecution offers no explanation. Learned counsel for the appellant, therefore, submits that had those witnesses were examined, they might not have supported the stories told and retold by PW's during trial. 21. 20. Some other villagers who were reportedly aware of the incident in question were not examined. In that regard too, the prosecution offers no explanation. Learned counsel for the appellant, therefore, submits that had those witnesses were examined, they might not have supported the stories told and retold by PW's during trial. 21. Situation being such, according to the learned senior counsel for the appellant, the prosecution cannot be said to have proved the charge u/s.457/376(2)(g) IPC against the accused-appellant beyond all reasonable doubt, and therefore, the learned trial court ought to have acquitted him on benefit of doubt. Since it was not done, the judgment aforesaid is liable to be set aside and quashed. 22. It is also the case of present appellant that the other two accused persons, namely, Niranjan Rajkhowa and Prasanta Bharali, who were facing trial along with present appellant and who were convicted of offences u/s. 457/376(2)(g) IPC along with the present appellant and were sentenced to punishment. 23. However, when they preferred an appeal against the judgment, they were acquitted of those offences vide judgment dated 17.12.2009 in Crl. Appeal No. 229 of 2007. According to Mr. Das, the appellant herein is similarly situated in all respects with the appellants in Crl. Appeal No. 229 of 2007 who were already acquitted of offences under Sections 457/376(2)(g) IPC. 24. Since the appellants in Crl. Appeal No. 229 of 2007 are similarly situated with the present appellant in all respects, this Court needs to extend the benefits which were already given to the appellants in Crl. Appeal No. 229 of 2007. In support of such contention, he places reliance on the following decisions rendered by Apex Court of the country in the case of Arokia Thomas v. State of T.N. reported in (2006) 10 SCC 542. 25. In Arokia Thomas (supra), the Apex Court held as follows:-- "...In view of the statement by PW-13 that the accused persons were identified in the torchlight, the evidence of PW1 disclosing that he identified the accused persons in the light of vehicle is highly doubtful, especially when this statement has been made for the first time in the Sessions Court. In Arokia Thomas (supra), the Apex Court held as follows:-- "...In view of the statement by PW-13 that the accused persons were identified in the torchlight, the evidence of PW1 disclosing that he identified the accused persons in the light of vehicle is highly doubtful, especially when this statement has been made for the first time in the Sessions Court. In this state of affairs, it is not possible to uphold the conviction of the appellant on the basis of evidence of PWs 1 and 13 especially in view of the fact that there is no other material for upholding the conviction. This being the position, we are of the view that the prosecution has failed to prove its case beyond reasonable doubt and the appellant is entitled to the benefit of doubt. 3. So far as accused Dhanasekaran is concerned, it is true that he has not preferred any appeal, but in view of the finding aforementioned that the prosecution case is highly doubtful and there is no ground for distinguishing the case of the accused Dhansekaran from that of the appellant, we are of the view that he is also entitled to acquittal irrespective of the fact that he has not moved this court." 26. Similar view was rendered in Jamalu, son of Asheen v. State of Rajasthan reported in (2007) 14 SCC 711 . The relevant part is reproduced below:-- "37. We are, however, of the opinion that in view of the fact that Daud had been given the benefit of doubt, as Jamalu stands on the same footing, he is also entitled to similar benefit and should, thus, be accorded benefit of doubt." 27. On the other hand, Mr. B.J. Dutta, learned Addl. Public Prosecutor appearing for the State submits that the judgment, rendered by trial court, is based on well established facts in so far the present appellant is concerned. In that connection, it has been stated that the evidence rendered by the victim, (PW 4), finds full support from the testimonies, rendered by other PWs, more particularly, PW 1, Smti Ilasi Sutradhar, PW 2, Sri Kharendra Sutradhar & PW 3, Sri Nagen Sutradhar. 28. That apart, her evidence that she was subjected to multiple sexual intercourses on the night in question draws unfettered support from the testimony, rendered by Medical Officer who examined the victim on 16.03.2012 at Dhakuakhana PHC. 28. That apart, her evidence that she was subjected to multiple sexual intercourses on the night in question draws unfettered support from the testimony, rendered by Medical Officer who examined the victim on 16.03.2012 at Dhakuakhana PHC. What is equally important is that the story, narrated by prosecutrix derives support from the I/O (PW 5) as well. 29. Since the judgment was rendered on well established evidence, it cannot be said that prosecution could not make out the charges against the accused person (appellant) beyond all reasonable doubt and as such, the benefit of acquittal given to other co-accused persons cannot be extended to the present appellant. He, therefore, urges this Court to dismiss the appeal. 30. I have considered the rival submissions having regard to the evidence on-record. Before I proceed further, I find it necessary to have a look at the evidence of the PWs and the evidence of the Doctor is first taken up for consideration. He was Dr. Bhabesh Gogoi (PW 6). According to him, on 16.03.2012, he was posted at Dhakuakhana PHC. On that day, he examined the victim on police requisition and found the following:-- "1. There were human teeth bite on the breast on the base of the right nipple. 2. On vaginal examination, the whole perineum was tendered, hymen was not found and bleeding was probably due to menstruation as stated. 3. On laboratory examination of vaginal swab sluggishly motile spermatozoa were found. Swab was taken by me & examined by me in our laboratory. Remarks: Rape within 20-30 hours from the time of examination." 31. So situated, let me consider the testimony of star campaigner from the prosecution side who is none other than the victim herself (PW 4). According to her, on the fateful night at about 12 midnight, some miscreants came to their house and ordered her to open the door stating that they were the members of ULFA, a banned organisation. Though she was reluctant to open the door, the accused persons entered into their house by breaking open the doors. 32. At that time, her room was lit by a lamp and in the light of the lamp, she saw that five miscreants namely, Niranjan Rajkhowa, Bupan Saikia, Ranjan Saikia, Prasanta Bharali and Joy Ch. Chutia, who were known to her, had made a violent entry into her house. 32. At that time, her room was lit by a lamp and in the light of the lamp, she saw that five miscreants namely, Niranjan Rajkhowa, Bupan Saikia, Ranjan Saikia, Prasanta Bharali and Joy Ch. Chutia, who were known to her, had made a violent entry into her house. On entering into her house, the aforesaid miscreants told her to come out. When she questioned as to where she was to go, the accused Ranjan tried to drag her out of the house. 33. When she resisted such efforts, she had fallen down on the ground and thereupon, accused Ranjan had committed rape on her. In the meantime, the other co-accused came out of her house. Seeing this, her sons started crying for help. Soon, thereafter, other accused persons again entered her house and took her to their courtyard and then to nearby field where all of them committed rape on her one after another. In that process, her wearing apparels got torn. 34. While the aforesaid incident was going on, she somehow managed to rescue herself from the clutches of the miscreants and rushed to the house of Cheniram Sutradhar. Though the accused persons chased her up to the house of Cheniram Sutradhar, they could not capture her since she took shelter in the house of the person aforementioned by that time. 35. On arriving at the house of Cheniram Sutradhar, she narrated how the accused persons had outraged her modesty and committed rape on her. In the meantime, all the villagers came to know about the incident and on their advice, she lodged an FIR with the police next day in the morning. She was thereafter examined by the doctor. Police also got her statement, recorded by Magistrate. 36. In her cross-examination she admitted that during investigation, she told police that on the fateful night all the miscreants had sexual intercourses with her inside her house. She, however, denied the suggestion that she did not divulge before the Magistrate that she recognised the miscreants in the light of the lamp which was there in her house on the night in question. She also denied the suggestion that in the FIR, she states that on the fateful night, her daughter was also in her house. 37. The other important witness is PW 3, Sri Nagen Sutradhar. She also denied the suggestion that in the FIR, she states that on the fateful night, her daughter was also in her house. 37. The other important witness is PW 3, Sri Nagen Sutradhar. According to him, on the fateful night at about 11 pm, he heard hue and cry coming from side of the victim's house. Hearing such hue and cry, he tried to come out of her house but he could come out because he was warned by some persons not to venture out of his house or to light a lamp. 38. Sometime, thereafter, the victim came to her house and requested him to help her. He, therefore, took the victim woman to the house of one Sri Dilip Gogoi. On way to the house of Sri Dilip Gogoi, she told him that little before, all the miscreants committed rape on her. In his cross-examination, he admitted that on the fateful night, he did not find any of the miscreants at the place of occurrence. 39. PW 2, Sri Kharendra Sutradhar deposes that on the fateful night at about 11 pm, the son of the victim came to his house and narrated about the alleged incident. He came to the house of the victim on the next day in the morning and from the victim, he came to know that on the previous night the miscreants committed rape on her. He also admitted that the victim is his relative. 40. PW 1, Smt. Ilasi Sutradhar deposes that she is the neighbour of the victim and she visited the house of the victim on the fateful night. The daughter of the victim was also in her house on that night. Both the accused Niranjan Rajkhowa and Joy Ch. Chutia came to her house and knocked at the doors asking Smt. Ilasi Sutradhar to open the same. 41. When she opened the doors, they came inside and enquired about the daughter of the victim. Taking advantage of darkness, the daughter of the victim woman, who was in her house on that night, ran away from the scene. Not being able to capture the daughter of the victim woman, the accused person committed rape on the victim. 42. It is also in her evidence that out of fear she left her house taking her daughter with her and took shelter in the house of Niranjan, one of her neighbour. Not being able to capture the daughter of the victim woman, the accused person committed rape on the victim. 42. It is also in her evidence that out of fear she left her house taking her daughter with her and took shelter in the house of Niranjan, one of her neighbour. In her cross-examination, she admitted that on the night in question, she did not visit the house of the victim. She also admitted that she did not witness the miscreants committing rape on the prosecutrix. 43. PW 5 is the Investigating Officer. He deposes that on being required, he started investigating the case and in the course of investigation, he examined the victim and her daughter as witnesses. Other persons, who were also well acquainted with the facts and circumstances of the case, were examined as witnesses. He also had the victim examined by the Doctor. 44. According to him, he could not seize the wearing apparels of the victim woman since she had only one pair of clothes which she was wearing at the time when he met her. In his cross-examination, he admitted that the victim woman had told him during investigation that all the accused persons committed rape on her inside her house. 45. Above being the evidence on-record, let me see how far such evidence makes out the allegations brought against the present appellant. In her evidence, the victim woman states that on the fateful night, the accused persons make violent entry into her house, caught her inside her house whereupon accused Ranjan Saikia committed rape on her. 46. However, thereafter, all the accused persons lifted her from inside her house, took her to the field nearby where all of them raped her one after another. However, in her evidence, she did not utter a word about her daughter being there in her house on that night or her daughter being misbehaved by the miscreants. In my opinion, such revelation is in huge deviation to the story which she narrated in her FIR. 47. On the perusal of the FIR, one would find that she specifically states in the FIR that on the night aforesaid, the miscreants having entered to her house tried to rape her as well as her daughter. However, her daughter somehow escaped from the clutches of the miscreants and left the scene. 48. 47. On the perusal of the FIR, one would find that she specifically states in the FIR that on the night aforesaid, the miscreants having entered to her house tried to rape her as well as her daughter. However, her daughter somehow escaped from the clutches of the miscreants and left the scene. 48. Thus, the prosecution story told in the FIR did not find corroboration from the story which victim, narrated during trial. Such varied versions on a very fundamental aspect of the prosecution case, in my opinion, do not augur well to advance the cause of the prosecution in the case under consideration. 49. In this context, one may look into statement which the daughter of victim had rendered before the Magistrate during investigation. In her statement u/s. 164 CrPC, she states that on the fateful night, the daughter of the victim was in her house and the miscreants, at first, tried to commit rape on her. She somehow managed to extricate herself from such a situation and left the RO. 50. Such a statement coming from the daughter of the victim not only shakes the very basis of story, projected by victim woman during trial but it also shows that her evidence to the effect that on the night in question the accused persons subjected her to multiple sexual intercourses of enormously gruesome nature cannot be accepted as wholly truthful version. 51. Still different version on very fundamental aspects of the prosecution case comes from the testimony of PW 1, Elasi Sutradhar. According to her, on the fateful night, the daughter of the victim was in her house which is situated not far away from the rented house of victim. Around midnight, the miscreants came to her house and having made a forcible entry into her house, tried to lay their hands on the daughter of victim. 52. The moment, the miscreants entered into her house, the daughter of victim left her house and took shelter in the house of their neighbours. Such a story, told by PW 3 is not in conformity with the stories, projected by victim and her daughter. In fact, PW 1 introduced before the court a story totally different from the stories rendered by other P.Ws. Such an inconsistent version, in my opinion, makes the prosecution case more and more unreliable. 53. Such a story, told by PW 3 is not in conformity with the stories, projected by victim and her daughter. In fact, PW 1 introduced before the court a story totally different from the stories rendered by other P.Ws. Such an inconsistent version, in my opinion, makes the prosecution case more and more unreliable. 53. In her evidence, the victim states that she was raped inside her house by accused Ranjan Saikia. Thereafter, all the miscreants took her outside her house and subjected her to repeated rape which was committed by all the miscreants one after another. However, such a story does not find support from her statement made in the FIR or statement which she rendered before the Magistrate during investigation. 54. I have already found that the daughter of the victim was an enormously important witness. So also her two sons who reported the incident to their neighbours even when the alleged incident was underway. However, all those persons were not examined, and that too, without showing any reason whatsoever. Non-examination of those vital witnesses seems to be quite fatal to the prosecution case. 55. One may note here that according to the daughter of the prosecutrix, the miscreants at first tried to rape her. She somehow saved herself from the clutches of miscreants and then took shelter in the house of one Basudev. It may also be stated that on the night in question itself, PW 3 took the victim to the house of one Dilip Gogoi and reported him what was done to her by the miscreants on that night. 56. In the facts and circumstances of the case under consideration, they could have thrown sufficient light on the incident in question. Once again, those vital persons were not examined, and that too, without assigning any reason whatsoever. Such failure on the part of prosecution, in my opinion, throws the prosecution case to a maze of suspicion. 57. It needs to be stated that having examined the victim woman on 16.03.2002, Doctor found some sign of sexual violence perpetuated on her person. It may be stated that though there was bleeding from the private part of the hapless woman, yet, the Doctor found such bleeding basically for her attaining period. Whatever may be the reasons of such bleeding, it needs to be stated that such evidence alone cannot make out the charge against the accused/appellant. 58. It may be stated that though there was bleeding from the private part of the hapless woman, yet, the Doctor found such bleeding basically for her attaining period. Whatever may be the reasons of such bleeding, it needs to be stated that such evidence alone cannot make out the charge against the accused/appellant. 58. It is a settled law that evidence of prosecutrix can be relied on, without any corroboration, provided the evidence of prosecutrix is found free from defects. However, in our instant case, though prosecutrix was allegedly subjected to brutal sexual intercourses and that too, allegedly by group of miscreants, yet, her evidence is found to be riddled with several serious infirmities. 59. That apart, her evidence does not run in unison on all material points with other prosecution witnesses. Rather, all other important witnesses contradict her on some very vital points. These, coupled with the fact that some very vital witnesses, were not examined, and that too, without assigning any reason, requires this Court to hold that the prosecution could not make out the charge levelled against the accused/appellant beyond all reasonable doubt. 60. I have noticed some other infirmities in the prosecution case which were highlighted by the learned senior counsel appearing for the appellant. Such infirmities in the prosecution case make it inescapable for this Court to hold that the prosecution could not make out the charges brought against the present appellant. 61. It may be stated that this court has the occasion to consider the judgment under challenge in connection with appeal preferred by Prasanta Bharali and Niranjan Rajkhowa. On considering the evidence on record, this Court allowed the aforesaid appeal on holding that the evidence on record does not make out the charges u/s. 457/376(2)(g) IPC against those two accused persons vide judgment dated 17.12.2009 in Crl. Appeal No. 229 of 2007. 62. Since the judgment, rendered in the aforesaid appeal, has serious bearing on the outcome of the present appeal as the appellant in the present appeal claims to be similarly situated with the appellants in the aforesaid appeal in all respects, I find it necessary to reproduce hereunder the relevant part of the judgment rendered in the appeal aforementioned. 62. Since the judgment, rendered in the aforesaid appeal, has serious bearing on the outcome of the present appeal as the appellant in the present appeal claims to be similarly situated with the appellants in the aforesaid appeal in all respects, I find it necessary to reproduce hereunder the relevant part of the judgment rendered in the appeal aforementioned. Such part is as follows:-- "(4) In the FIR(Ext.) it is alleged that the accused persons in the night of 15.3.2002, 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 CrPC. 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 CrPC, 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) 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 Section 164 CrPC. 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. 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. There were human teeth bite on the breast on the base of the right nipple. 2. On vaginal examination, the whole perineum was tendered, hymen was not found and bleeding was probably due to menstruation as stated. 3. On laboratory examination of vaginal swab sluggishly motile spermagozoa were found. Swab was taken by me & examined by me in our laboratory. Remarks: Rape 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. 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 Cheniram Sutradhar told the accused persons that she was not in their house. 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 Cheniram 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. 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 313CrPC 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, 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 Nupen 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. From the impugned judgment itself, it is found that accused Nupen 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 Smit. Purnima Sutradhar, under Section 164 CrPC 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. It that be 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 Smit. 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 house in the night of the incident and saw the incident with this own eyes, could also be an important eye-witness. He, thereafter, could have been produced as an important eye-witness after testing him as to whether he was fit for giving any evidence but the prosecution has left out his 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. 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 any 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 CrPC, her Smt. Purnima Sutradhar also stated that she somehow managed to escape and took shelter in the house of one Sri Cheniram Sutradhar. 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 CrPC, her Smt. Purnima Sutradhar also stated that she somehow managed to escape and took shelter in the house of one Sri Cheniram Sutradhar. It 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 CrPC 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 night 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. But what about the statement under Section 164 CrPC 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, from the scene. Could the statement of Smit. 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 Smit. Purnima Sutradhar under Section 164 CrPC 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. In my considered view, the categorical statement given by Smit. Purnima Sutradhar under Section 164 CrPC 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 . In the present case, the contradictions in the material fact, namely presence of her daughter (Smit. 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 (Smit. 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. 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. 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 Section313 CrPC stated that such incident elopement actually took place and they have been simply implicated in the case of grudge as because they have visited the house of 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 here 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. 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 be set at liberty, forthwith, if their detention, otherwise, is not required in connection with some other case." 63. When one considers the evidence on-record in the light of observations made in the judgment rendered in Criminal Appeal No. 229 of 2007, he would find reason to hold that present appellant is similarly situated with the appellants in Criminal Appeal No. 229 of 2007 in all respects. 64. Since the appellant in the present appeal is similarly situated with the appellants in the appeal registered as Crl. Appeal No. 229 of 2007, in my opinion, in view of law laid down in Arokia Thomas (supra) and Jamalu, son of Asheen (supra), the benefit which was given to the appellants in Crl. Appeal No. 229 of 2007 needs to be extended to the appellant herein. 65. In view of what I have discussed hereinbefore and in view of what have emerged there-from, I am of the considered view, that the judgment under challenge in so far present appellant is concerned cannot be sustained and as such, same needs to be set aside and quashed. 66. Resultantly, the judgment under challenge is quashed and set aside. The accused is acquitted of offence u/s. 457/376(2)(g) of the IPC on benefit of doubt and he is ordered to be released forthwith, if his detention is not required in connection with any other case. 67. Fines, if realised, are to be returned forthwith immediately. 68. LCR be returned forthwith. 69. The accused is acquitted of offence u/s. 457/376(2)(g) of the IPC on benefit of doubt and he is ordered to be released forthwith, if his detention is not required in connection with any other case. 67. Fines, if realised, are to be returned forthwith immediately. 68. LCR be returned forthwith. 69. However, considering facts and circumstances in the present case, I am of the opinion that an amount of Rs. 40,000/- needs to be paid to the victim in Sessions Case No. 27 (NL) of 2003 as being compensation in the terms of Section 357(A) CrPC and the Rules framed there-under. 70. Such amount is to be paid by State of Assam through District Legal Service Authority, Lakhimpur within a period of 3 (three) months from the date of receipt of a copy of the judgment. The Registry shall circulate a copy of the judgment to Law Secretary and LR, Govt. of Assam as well as State Legal Services Authority, Assam, Guwahati as early as possible for doing needful as indicated above.