JUDGMENT : Indira Shah, J. The judgment and order dated 10-05-2007 passed by the learned Sessions Judge, Jorhat in Sessions Case No. 12(J-J) of 2005 convicting the appellants under Section 366 read with Section 34 of the IPC and sentencing them thereby to undergo rigorous imprisonment for 5 years with fine of Rs.1000/- in default, R.I. for 3 months for their conviction under Section 366 IPC and also further rigorous imprisonment for 6 months for their conviction under Section 342 read with 34 IPC is under challenge in Criminal Appeal No. 91 of 2007. Criminal Appeal No. 118 of 2007 is against the same judgment and order and the appellant has been convicted under Section 366/342 read with Section 34 IPC as well as under Section 376 IPC and thereby he has been sentenced to undergo rigorous imprisonment for 7 years for his conviction under Section 376 and 5 years under Section 366 IPC and further imprisonment of 6 months for his conviction under Section 342 IPC. Since both the appeals have been arisen out of the common judgment and order, I propose to dispose of both the appeals by this common judgment and order. 2. I have heard Mr. A. Khalid, learned counsel for the appellants in Crl. A. No. 91 of 2007 and Mr. B. Banerjee, learned counsel for the appellant in Crl. A. No.118 of 2007. Also heard Mr. B. Gogoi, learned Addl. P.P., Assam. 3. The prosecution case, in brief, is that on 25-04-2003, at around 9.30 P.M., while the victim was washing utensil behind the back of her house, the accused Ajit Malakar along with his brother Bhajan Malakar and accused Kamai Bhumiz appeared. The accused Ajit Malakar was a teacher of a School. He asked the victim to produce her certificate with regard to her citizenship and while the victim entered in her house to bring out the documents, the accused followed her, gagged her mouth and thereafter all the three accused dragged her to the shop house of accused Ajit Malakar. The accused Ajit Malakar forcefully committed rape on her. Early in the next morning at around 4.00 A.M., the accused Bhajan Malakar and Kamai Bhumiz tied her mouth, lifted and dropped her in the cane groove in almost in a naked condition. The victim could regain her sense at 4.00 P.M. and went to the cattle shed of Benu Malakar. The accused Ajit Malakar forcefully committed rape on her. Early in the next morning at around 4.00 A.M., the accused Bhajan Malakar and Kamai Bhumiz tied her mouth, lifted and dropped her in the cane groove in almost in a naked condition. The victim could regain her sense at 4.00 P.M. and went to the cattle shed of Benu Malakar. Seeing her, Benu Malakar commotion and provided her sari and her parents were informed. The FIR was lodged by the victim on 27-04-2003. On the basis of the said FIR, Titabar P.S. Case No. 35 of 2003 under Sections 366/376 IPC was registered. 4. During the investigation, the police seized the petticoat and sari i.e. wearing apparels by the victim on being produced by her. Police also seized a bag containing mark sheets, admit card of HSLC and HSSLC, one PRC and one school leaving certificate lying near the gate of the victim house. The victim was examined by the doctor and her statement under Section 164 Cr.P.C was also recorded. The wearing apparels of the victim seized by the police were sent to Forensic Science Laboratory (FSL). On completion of the investigation, police submitted the charge sheet under Sections 366/342/376 read with Section 34 IPC against the accused persons. 5. The offence being trial of the Court of Sessions, the case was committed for trial. Charge under Sections 366/342 read with Section 34 IPC was framed against all the three accused. The accused Ajit Malakar was separately charged under Section 376 IPC. The accused persons pleaded not guilty to the charge framed against them and claimed to be tried. 6. During trial, altogether 12 witnesses were examined by the prosecution. Thereafter, the statement of the accused persons under Section 313 Cr. P.C. were recorded wherein they denied the allegations levelled against them and pleaded that they were innocent. They, however, did not adduce any defence evidence. On conclusion of trial, they were convicted and sentenced as stated earlier. 7. P.W.1, Sri Ghana Kanta Saikia was the Gaonburaha (GB) of village-Patia Gaon. He deposed that at the time of incident, the victim has been studying in college. On 26-04-2003 in the evening while he was proceeding towards bazar, he saw the victim along with a youth on a bicycle. 7. P.W.1, Sri Ghana Kanta Saikia was the Gaonburaha (GB) of village-Patia Gaon. He deposed that at the time of incident, the victim has been studying in college. On 26-04-2003 in the evening while he was proceeding towards bazar, he saw the victim along with a youth on a bicycle. She asked them to stop and thereafter she reported that at around 9.30 P.M., last night, while she was washing utensil at the backside of her house, Ajit Malakar, School Teacher, came there and asked her for her PRC and when she entered into her house to bring out the PRC, the accused Ajit gagged her mouth by means of a cloth rendering her unable to speak and took her to his shop. He was accompanied by Bhajan Malakar and Kamai Bhumiz. In the shop, Ajit Malakar tied her hands and feet and committed rape on her throughout the night. In the early morning Bhajan and Kamai took her in a nearby cane groove. The victim requested P.W.1 to accompany her to police station. Accordingly, he accompanied her to the police station and the incident was verbally reported to the police. It appears from the evidence of Investigating Officer that the verbal information was reduced into writing and entered in General Diary as GD Entry No. 547 dated 26-04-2003. GDE was exhibited as Ext.2 by the Investigating Officer. 8. In cross-examination, P.W.1 admitted that the victim is his sister-in-law. The distance between the house of the victim to the shop of the accused Ajit is almost 1 Km. There are several houses around the distance of 1 KM. The youth who accompanied the victim in the bicycle is her maternal Aunt's son. According to him, the material exhibited-1 i.e. wearing clothes of the victim were seized from the shop of the accused. However, from the seizure list, it appears that the wearing clothes were produced by the victim herself. 9. The victim was examined as P.W.3. She deposed that on the day of incident, she had gone to Golaghat in connection with her maternal Aunt's marriage and she returned therefrom at 5.30 P.M. On her arrival at home, she did not find her parents as her mother had gone to attend her maternal Aunt's marriage at Maligaon and her father had gone to bazaar. Her younger brother was also attending a marriage and her elder brother was at home. Her younger brother was also attending a marriage and her elder brother was at home. Her father came around 8.00 P.M. and she reminded him that he had an invitation to attend in the house of neighbour and then he left the house for attending the invitation. After attending the invitation, her father returned home at around 9.00/9.30 P.M and then she served him dinner. After dinner, her father retired to bed and she started washing utensil in the backside of her houses. Then the accused Ajit Malakar appeared there and said 'give me your citizenship certificate or else'. While she was taking out the paper from a bag inside the house, she saw Bhjan and Kamai with the accused. The accused Ajit gagged her mouth by means of a 'Gamucha' and brandished an axe. He carried out her to his shop with the help of the accused Bhajan and Kamai. The accused Ajit dropped her on a bed straight on the floor inside his shop and tied one of her hands to chair and another to corner of a table. He, then, sent out two other accused persons and thereafter, he forcibly committed rape on her twice. She became senseless and prior to that looking at the wall clock she realized that it was 4.00 A.M. Thereafter, at about 4.00 A.M. the accused again committed sexual intercourse with her. Then accused Bhajan and Kamai came and while she was only wearing sari and petticoat, they carried her in a cane groove and dropped her there. At 4.00 P.M, she regained her sense in a cane groove. She got up and by crossing the road, she entered into a cattle shed of Benu Malakar. On seeing here, Benu raised commotion and provided her sari and blouse to wear. Benu conveyed the information to her parents at her house and thereafter her parents arrived there. She told them all about the incident. Nearby the people also gathered there who advised her to go to police station. She stated that she went to the police station along with her mother and verbally informed the police. Next day, she lodged the written ejahar. On arrival of police, she gave them the petticoat, sari and blouse, which were her wearing apparels of her at the time of incident. Police seized the same as Ext.1. She identified the seized apparels. She stated that she went to the police station along with her mother and verbally informed the police. Next day, she lodged the written ejahar. On arrival of police, she gave them the petticoat, sari and blouse, which were her wearing apparels of her at the time of incident. Police seized the same as Ext.1. She identified the seized apparels. Police also seized the bag containing mark sheets, admit card, PRC certificate from the shop of the accused, which was exhibited as Ext.3. Whereas, from the Ext.3, it appears that the bag containing the aforesaid documents were seized from the gate of the victim house. 10. In cross-examination, she stated that the accused Ajit is known to her for 7 years as a teacher. Accused Bhajan is his cousin brother. Her house is kacha house comprised of 4 rooms. Her father and elder brother were inside the house when she entered the house to take out the PRC file. There are houses of other people nearby her house. She denied that she did not tell the police about Ajit threatening her by means of an axe. She was taken to the Ajit's shop through a field. According to her as she was threatened by Ajit, she did not try to get herself free. There are houses of some other people nearby the shop of Ajit. A public road also runs in front of the shop and people used that road. She also denied that she did not to tell the police that the accused Bhajan and Kamai were holding her hands while she was dropped in the bed in the shop of the accused Ajit. She also stated that police recovered the bag, sari from the shop of the accused. According to her, while she was taken to the shop of Ajit, Bhajan had taken the bag containing PRC and kept it in the shop. She also stated that while she narrated the incident to her parents, at that time, Sri Kaya @Durgeswar and Labanya Dutta were also present. 11. P.W. 4 is the mother of the victim, who stated that on the day of incident, she was attending the marriage along with her youngest son in another village. She returned home next day and did not see any one in the house. When her husband came back house, he said that their daughter was not at home. 11. P.W. 4 is the mother of the victim, who stated that on the day of incident, she was attending the marriage along with her youngest son in another village. She returned home next day and did not see any one in the house. When her husband came back house, he said that their daughter was not at home. On boy, namely, kanoo, from the neighbourhood informed that she was lying in their cattle shed. She along with her husband went there and found their daughter in goat-pen in the house compound of Kanoo. Then the incident was reported by the victim. In her cross-examination, she stated that when she arrived at Benu or Kanno's house, she saw the victim coming out from goat-shed without any cloth on her person. She also stated that Ajit's shop is at a distance of 1 mile from her house and numbers of people live on the track between her house and Ajit's shop. The road linking from the house of victim to the shop of Ajit is a village track. She stated that police seized the bag from her gateway. She admitted that she had no ill feeling against Ajit. 12. P.W.5, Benu Malakar stated that he had a cattle-shed for keeping cow and goats. One afternoon, when she went to close the gate of the shed, she saw the victim inside the shed wearing nothing except petticoat and semiz. Out of fear, she raised commotion whereupon her elder brother Kanoo Malakar and other neighbourer came, then, she provided her sari and blouse to wear and sent Kanoo Malakar to inform the victim's family members. Thereafter, they also came. On being asked by her mother, the victim told that Ajit Malakar with the help of the Kamai and Bhajan took her from her house. P.W.5 was declared hostile by the prosecution. She denied in her cross-examination by the prosecution that the victim told her mother that by gagging her mouth, the accused persons took her to the shop of the accused Ajit and committed rape on her throughout the night and the next day, Bhajan and Kamari at around 4.00 A.M. carried her and dropped in a cane-groove. She denied in her cross-examination by the prosecution that the victim told her mother that by gagging her mouth, the accused persons took her to the shop of the accused Ajit and committed rape on her throughout the night and the next day, Bhajan and Kamari at around 4.00 A.M. carried her and dropped in a cane-groove. In her cross-examination by the defence, she stated that in order to come to her house from the shop of the accused Ajit, one has to travel by in front of the house of the tea garden workers. 13. P.W.6, Sri Kanoo Malakar, deposed that while he was working as daily labourer, her sister Benu Malakar was at home and she went to the cattle-shed and saw the victim there. She called him and he also saw the victim wearing a petticoat and semiz and thereafter, he went to the victim's house and informed her family members, whereupon, her parents came. He stated that on being asked, the victim stated that she was taken to the shop of the accused where Ajit had committed bad act on her and in the morning, accused Bhajan and Kamai threw her in a cane-groove wherefrom she came out and entered in the cattle-shed. In her cross-examination, P.W.6 stated that before arrival of her parents, 6/7 neighbours had gathered there. 14. P.W.7 Jagat Singh, deposed that on hearing the alarm raised by Benu, he went there at around 4.30 P.M. On arrival, he saw that a girl is inside the cattle shed wearing only petticoat and semiz. She did not come out as not being not properly dressed the people gathered there asked Benu to give her a sari and thereafter, the parents of the victim were informed. After wearing sari, victim came out and entered in Benu's house. She informed her parents that accused Ajit Malakar committed rape on her. 15. P.W-8, Ratneshwar Kalita, is the father of the victim, who deposed that on the night of the incident, at around 7.30 P.M., he came home from the market and again went out for participating in a feast. His daughter and son were in the house while his wife and younger son had gone to another village to attend a marriage. After having feast, he returned home at around 9.00 P.M., the victim opened the door and while his son was asleep. His daughter and son were in the house while his wife and younger son had gone to another village to attend a marriage. After having feast, he returned home at around 9.00 P.M., the victim opened the door and while his son was asleep. He had his dinner and went to the bed. After that her daughter took her meal. On the next day, he woke up at around 7.00 A.M and did not find victim at home, he thought that as she used to go tuition in the morning and therefore, she might had gone to tuition as usual. When she did not return till 9.00 A.M, he searched her but could not trace her out and then he informed his wife. According to him, he continued his search throughout the day and at around 3.00 to 3.30 P.M., Kanoo came and informed that his daughter was in his cattle-pen. He along with his wife rushed to the Kanoo's house. On being asked, the victim told them that accused Ajit, Bhajan and Kamai had gagged her mouth, when she was washing utensil and taken her to Ajit's shop where she was raped by Ajit and in the morning, Bhajan & Kamai had thrown her in a cane-groove. He stated that the bag containing document of the victim was sized near the gate of his house. He also stated that prior to the incident the accused used to visit their house occasionally. 16. In cross-examination, he (P.W.8) stated that when victim did not return from the tuition around 8.00 to 9.00 A.M., he went to the houses of Jagat and a Bengali speaking man to enquire about her daughter and they were told that her daughter was not there and he returned back home. He did not go to any other's houses in the village in search of his daughter. He did not inform the police as well, about the missing of his daughter. He stated that on his arrival to Benu's house, he saw the victim wearing petticoat and semiz. He stated that accused Bhajan and Ajit Malakar are uterine brothers. He also stated that the seized bag containing documents were lying in a ditch near his gate and a bengalee boy of the neighbourhood saw the bag lying in the ditch and informed him and he, in turn, informed the police. 17. He stated that accused Bhajan and Ajit Malakar are uterine brothers. He also stated that the seized bag containing documents were lying in a ditch near his gate and a bengalee boy of the neighbourhood saw the bag lying in the ditch and informed him and he, in turn, informed the police. 17. P.W.9 is the younger brother of the victim. On the day of the incident, he along with victim and his father were at home while his mother and elder brother had gone to attend a marriage in another village. He stated that he went to bed on arrival of his father after attending a feast in the village. When, he woke up in the morning did not find the victim at home. He also stated that he thought that she had gone to her tuition but when she did not come back at 9.00 A.M., he and his father became suspicious, informed his mother to come back home. At around 4.00 P.M., Kanoo came and informed that his sister had put herself in their goat pen. When her parents went to the Kanoo's house, the victim was then taken to the police station and when she came back home, she reported the incident to her parents. In cross-examination, in tune with his father, he stated that he went to the house of the Jagat Singh in search of the victim. However, they did not inform about the missing of the victim to anybody else. 18. P.W.11, Dilip Kumar Baruah is the Investigating Officer of the case. He deposed that verbal information of the victim, was entered in the general diary and subsequently, ejahar was lodged. Verbal information was entered on 25-04-2003 when the victim came along with Gaon Buraha. P.W.11 visited the place of occurrence, drew sketch map of the site and examined the witnesses. He seized the wearing apparels of the victim on being produced by her. He also seized a bag containing papers/documents belonging to the victim. Victim was sent to the Court to record her statement under Section 164 Cr.P.C. She was also subjected to the medical test. To ascertain whether the petticoat of the victim worn at the time of incident contains any semen, it was sent to FSL for analysis. He arrested the accused on 27-04-2003. Victim was sent to the Court to record her statement under Section 164 Cr.P.C. She was also subjected to the medical test. To ascertain whether the petticoat of the victim worn at the time of incident contains any semen, it was sent to FSL for analysis. He arrested the accused on 27-04-2003. On 28-04-2003, he collected the medical report and copy of the statement of the victim recorded under Section 164 Cr.P.C. On completion of investigation, he submitted the charge sheet. 19. In cross-examination, P.W.11 stated that victim was sent for medical examination at 10.00 A.M. on 27-04-2003. He seized the wearing apparels of the victim i.e. sari, petticoat and blouse on being produced by the victim at the police station in presence of P.W.1. He went to the victim's house twice on 27-04-2003 and 29-04-2003 and on both occasion, no bag or file was shown to him. Again on 30-04-2003, the bag was seized which lying near the victim's gate. He did not seize the underwear of the accused Ajit Malakar. He stated that P.W.1 did not tell him that the victim reported that Ajit gagged her and committed rape on her throughout the night or that the accused Bhajan and Kamai had thrown her in a cane-groove in unconscious state. The victim also did not state him that accused threatened her by an axe or prior to committing rape on her, Ajit had sent Bhajan and Kamai away. He stated that accused Ajit and Bhajan are uterine brothers. He did not send the accused Ajit for medical test. 20. P.W.12 was the Senior Science Officer of the FSL and on receipt the sealed packed box containing suspected semen marked as 1,2 & 3 and after examination, he gave his report that exhibit-141/03 gave positive test for heman semen. In cross-examination, he stated that the forwarding letter contains Titabar P.S. Case No. 35/2002 and it was corrected as 35/2003 by ink. There is no initial in the correction. He submitted his report on 14-08-2003. In his report also Titabar P.S. Case No. was type as Titabar P.S. Case No. 35/2002 and it was also corrected as Titabar P. S. Case No. 35/2003. He could not say who corrected 35/2002 as 35/2003. He did not mention about the age of the semen. He denied that his report was not in connection with the instant case i.e. Titabar P.S. Case No.35/2003. He could not say who corrected 35/2002 as 35/2003. He did not mention about the age of the semen. He denied that his report was not in connection with the instant case i.e. Titabar P.S. Case No.35/2003. 21. P.W.10, Dr. K.K. Gogoi examined the victim on 27-04-2003 at 1.30 P.M. at Jorhat Civil Hospital. On his examination, he did not find any sign or external violence on any part of body of the victim. His findings are quoted below:- "Height: 5 ft. Weight-40 Kg. Identification mark: one small black mole on chest. Teeth: 28/28.Breast-Well developed. Hymen-old tear. Valve-well developed. Public hair - abundant. Auxiliary hair - scanty. No sign of external violence. Vaginal smear shown no spermatozoa. X-ray report - The age of the girl is above 18 years." In the opinion of the doctor, the victim was above 18 years of age and there was no evidence of alleged rape. Before submitting his report, he took opinion from Dr. J.N. Gogoi, Gynaecologist also. 22. The victim in this case was raped throughout night at least for 3 times on the intervening night of 25-26/04/2003 and she was examined by the doctor on 27-04-2003. The allegation of the victim is that the rape was committed forcibly without her consent and she became unconscious but the medical evidence shows that there was no injury on the body or private parts of her person. The forwarding letter report in respect of sending of FSL report, the P.S. case number mentioned as case No. 35/2002 and has been corrected by ink as 35/2003 without any initial. Similarly, in the Ext.8, the FSL report, the P.S. Case number has been manipulated from 35/2002 to 35/2003 by ink. P.W.12, the Senior Scientific Officer has not stated that he has corrected the P.S. case number. He is not aware, who corrected the P.S. Case number. On scrutinizing the evidence on records, it appears that the victim has alleged that she was forcibly taken away from inside her house by the accused while her father and brother were in the house. It is difficult to believe that her father and brother were in such a deep sleep that they could not hear the screaming of the victim. It is difficult to believe that her father and brother were in such a deep sleep that they could not hear the screaming of the victim. In the next morning, when they did not find the victim in the house, they thought that she might have gone to her tuition wherefrom she usually returns home at around 8.30 to 9.00 A.M. They also stated that they went to her teacher's house where she used to go for tuition to enquire about her but they did not attempt to search her or to report about her missing to anybody else. 23. In the cited case of Narayan Alias Naran v. State of Rajasthan, reported in (2007) 6 SCC 465 , the medical evidence was that "no definite opinion can be given regarding rape" and there were further material contraction, it was held that the evidence of the prosecutrix cannot be relied upon. 24. Another important aspect of the matter is that P.W.1 stated that he saw the victim along with a youth in a bicycle whereas; from the evidence of the other witnesses, it transpires that the victim was accompanied by her parents from the house of Benu and Kanoo. That youth, who accompanied the victim, was not examined by the prosecution. As regard the place of seizure of the wearing apparels, there are contradiction in the evidence of the victim and P.W.1 who stated that it was seized from the shop of the accused Ajit whereas from the seizure list as well as the evidence of the Investigating Officer reveals that it was produced by the victim at the police station. P.W.1 stated that bag containing documents i.e. PRC, Admit Card was seized from the shop house of the accused Ajit whereas; the bag was seized from the gate of the victim's house and that too, on 30-04-2003. Even if it is believed that the seized petticoat bears human semen, there is nothing to link the accused with the semen. 25. In the cited case of Sadashiv Ramrao Hadbe v. State of Maharashtra & Anr, reported in (2006) 10 SCC 92 , it was observed in Para 9 and 12 as under:- "9. It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the Court. It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the Court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix. The Courts shall not act on the solitary evidence of the prosecutrix. The Courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen. 12. It is true that the petticoat and the underwear allegedly worn by the appellant had some semen but that by itself is not sufficient to treat that the appellant had sexual intercourse with the prosecutrix. That would only cause some suspicion on the conduct of the appellant but not sufficient to prove the case, as alleged by the prosecution." 26. Here in this case also as discussed earlier, the doctor who examined the victim did not find any injury on her body and/or private parts. He finds no sign on rape. The FSL report is also doubtful since the P.S. Case number has been corrected without any initial. Moreover, the presence of semen found in the Petticoat produced by the victim is not sufficient to connect the accused or to draw the inference that it was semen stain of the accused Ajit Malakar. 27. In view of the above, the whole prosecution story appears to be doubtful. Therefore, the appellants are entitled to get the benefit of doubt. The learned Sessions Judge, Jorhat, erred the finding the appellants guilty. Accordingly, the conviction as well as sentence passed against the accused appellants for their offences are hereby set aside and quashed. The accused appellants be acquitted and set at liberty forthwith 28. The appeals are accordingly allowed. The appellants are set at liberty forthwith. The bail bond, if any, stands discharged. Return the LCRs to the learned court below with a copy of this judgment and order.