ORDER (ORAL) 1. These 3 (three) appeals have arisen out of the judgement of conviction dated 15/06/2013 of the learned Sessions Judge, Bongaigaon in Sessions Case No. 61(BGN)/2010 convicting the 4 (four) accused appellants, namely, Robin Sutradhar, Karen Ray, Jadu Ray and Dimbeswar Choudhury. While Robin Sutradhar has been convicted under section 341/376(1) IPC with the sentence of R.I. for 7 (seven) years and to pay a fine of Rs. 1,000/- and in default R.I. for further two months for the offence under Section 376(1) IPC and also to pay a fine of Rs. 500/- and in default S.I. for one month for the offence under Section 341 IPC, other three accused appellants namely, Karen Ray, Jadu Ray and Dimbeswar Choudhury have been convicted under Section 354/341 IPC with the sentence of R.I. for two years each and also to pay a fine of Rs. 500/- each and in default R.I. for one month for the offence under Section 354 IPC and also to pay a fine of Rs. 500/- each and in default S.I. for one month for the offence under Section 341 IPC. While the appellants involved in criminal appeal No. 217/2013 (Jadu Ray) and the appellants in Criminal Appeal No. 189/2013 (Karen Ray and Dimbeswar Choudhury) have filed regular appeals, the other accused appellant Robin Sutradhar involved in Criminal Appeal No. 75(J)/2013 has preferred the appeal from jail. . 2. All the appeals having arisen out of the same judgment have been heard analogously and are being disposed of by this common judgment and order. While the appellant Jadu Ray in criminal Appeal No. 217/2013 is represented by Mr. R. De, learned counsel, the appellant (Karen Ray and Dimbeswar Choudhury) in Criminal Appeal No. 189/2013 are represented by Mr. H.R. A. Choudhury led by Mr. M.U. Mahmud, learned counsel. So far as the jail appeal is concerned i.e. Criminal Appeal No. 75(J)/2013 (Robin Sutradhar), the appellant is represented by Ms. B. Das, learned Amicus Curiae. 3. While according to the learned counsel representing the appellants, there are inherent contradictions in the evidence led by the prosecution warranting interference with the impugned judgment and order of conviction, according to the prosecution led by Mr. D. Das, learned APP, Assam, there is nothing to interfere with the impugned judgment of conviction. Mr. B. Das, learned Amicus Curiae. 3. While according to the learned counsel representing the appellants, there are inherent contradictions in the evidence led by the prosecution warranting interference with the impugned judgment and order of conviction, according to the prosecution led by Mr. D. Das, learned APP, Assam, there is nothing to interfere with the impugned judgment of conviction. Mr. R. De, learned counsel has placed reliance on certain decisions, namely, AIR 2011 SC (SUPP) 573 ( State of U.P. Vs. Munni Ram and others) ; AIR 2012 SC 1249 (Sampath Kumar Vs. Inspector of Police, Krishnagiri); AIR 2010 SC 942 (Mulla and Anr. Vs. State of U.P.) ; AIR 2012 sc 2281 (Narendra Kumar Vs. State (NCT of Delhi) and AIR 1992 sc 2100 (1) (State of Maharashtra Vs. Sukhdeo Singh and another). These decisions are on the principles that if two views are possible on evidence adduced, the view favourable to the accused is normally to be adopted ; conviction cannot be based on suspicion; consequence of identification of accused made for the first time in Court; the circumstances in which testimony of prosecutrix when become doubtful ; belated identification of the accused in Court by witnesses, etc. 4. An FIR was lodged with the Bongaigaon P.S. on 31/03/2019 by the mother of the victim girl (PW-1) to the effect that on or about 6-30 p.m. when her daughter (PW-7) was coming back home from her work place at North Bongaigaon, the accused persons named in the FIR forming a gang stopped her near the bridge of Tunia River and pipeline at Pub Doloigaon and one of them, namely Robin Sutradhar i.e. the appellant in Criminal appeal No. 75(J)/2013 committed rape on her. At that moment, police came and arrested all of them. 5. Based on the aforesaid FIR so lodged, Bongaigaon PS Case No. 130/2009 was registered under Section 341/376/34 IPC. On conclusion of the investigation, charge was framed against Robin Sutradhar under Section 341/376 of IPC and against other accused persons namely, Karen Ray, Jadu Ray and Dimbeswar Choudhury under Section 341/354/34 IPC and also 376(1)/109 IPC. Charges were read over to the accused appellants and they having pleaded not guilty and claimed to be tried, trial commenced. 6. During trial, the prosecution examined 10(ten) witnesses while defence examined none. Charges were read over to the accused appellants and they having pleaded not guilty and claimed to be tried, trial commenced. 6. During trial, the prosecution examined 10(ten) witnesses while defence examined none. However, the statement of the accused appellants were recorded under Section 313 Cr.P.C. Raising the following points for determination, the learned trial Court having answered the same in the affirmative towards convicting the accused appellants and sentencing them as aforesaid, they have preferred the appeals “Points for determination : 1. Whether the accused persons in furtherance of their common intention on 31/03/2009 at about 6.30 PM wrongfully restrained the way of the victim Aziran Bibi near the Bridge at Tunia river for committing rape on her and thereby committed an offence U/S 341/34 IPC ? 2. Whether the accused persons on the same date, time and place used criminal force to the victim Aziran Bibi intending to outrage her modesty by touching her body and thereby committed an offence U/S 354/34 IPC ? 3. Whether the accused Robin Sutradhar on the same date, time and place committed rape on the victim Aziran Bibi and thereby committed an offence U/S 376(1) IPC ? 4. Whether the other accused persons except Robin Sutradhar on the same date, time and place prevented the victim from raising hue and cry by closing her mouth and thereby abetted the commission of rape U/S 376 IPC on her by Robin Sutradhar and thereby committed an offence U/S 109/376(1) IPC ?” 7. In the FIR, what was stated is that the alleged offence was committed by the accused appellants while the victim was coming from her work place. On the same day of the incident, she was examined by PW-3 who in his deposition stated that on 31/03/2009 while he was on duty at Bongaigaon Civil Hospital at about 9-30 PM, he had the occasion to examine the victim girl (PW-7), and he found the following : “Examination of breast – Breast normal did well developed. Nipple normal. No injury noted. Examination of Genetalia - No External injury seen. Pubic hair – normal. No injury mark around valva. Hymen – intack No injury mark seen in vaginal canal. Uterus – normal size. Investigation advised- Vaginal smear – for presence of sperm. X-ray left iliac chest for age determination. Urine-for pregnancy test. Report and Investigation- Vaginal smear – no spermatozom seen. Examination of Genetalia - No External injury seen. Pubic hair – normal. No injury mark around valva. Hymen – intack No injury mark seen in vaginal canal. Uterus – normal size. Investigation advised- Vaginal smear – for presence of sperm. X-ray left iliac chest for age determination. Urine-for pregnancy test. Report and Investigation- Vaginal smear – no spermatozom seen. X-ray report – Age is between 16 to 20 years. Opinion : There is no sign of recent sexual act. There is no mark of violence seen in any part of her body including the private parts. From the above notes, it can not be ascertained whether she has been raped or not. Ext. 2 is my report. Ext. 2(1) is my signature.” 8. Referring to the aforesaid report found mention in the testimony of PW-3 i.e. the doctor, who had examined the victim girl, it is the submission of the learned counsel for the appellants that had there been an incident like the one referred to in the FIR as well as in the testimony of the victim girl, there would have been certain injuries on her body and also in her private parts. According to them, the accused appellants have been falsely implicated with an ulterior motive. 9. PW-7 in her statement made on 01/04/2009 under Section 164 Cr.P.C. stated that while she was coming back from her work place along with one Golam Mistri (PW-6), on reaching the particular river bridge, 4 (four) boys confronted them and scolded PW-6 and also beat him up. Thereafter they caught hold of her hands but she managed to escape and started running. The four boys also ran after her and 3 (three) of them grabbed her and all four forcefully took her clothes off from her body. Thereafter, 3 (three) of them dragged her to the field and one of them raped her with the help of others. In her said statement, she had also stated that just at that moment, police arrived and rescued her and all the four accused persons were also caught. According to her said statement, while she was coming with PW-6, he was in a bicycle and she was walking. 10. In her statement during the trial, the victim girl stated that she was coming from Kukurmari towards her home along with Golam Mistri (PW-6) on his bicycle. According to her said statement, while she was coming with PW-6, he was in a bicycle and she was walking. 10. In her statement during the trial, the victim girl stated that she was coming from Kukurmari towards her home along with Golam Mistri (PW-6) on his bicycle. Both of them got down near the bridge and just at that time, four persons appeared and caught by her hand and they also grappled with Golam. She attempted to run away but the accused chased her. Two of the accused persons caught her and thereafter she was taken to the bank of the river. According to her, rape was committed by one of the accused appellants and others rendered help. 11. On being asked by the Court as to whether after the police rescued her, she had washed her private part before medical examination, her answer was in negative. In the cross examination she stated that she could not recognize the accused due to darkness. According to her, she could not shout much as the accused persons had threatened her that she would be killed in the event of any resistance. Pointing out to the accused Robin, she in her cross examination stated that she could identify the said accused appellant and such identification was helped by police as the police flashed torch light on both of them. 12. From the above evidence of the PW-7, it is seen that while in her statement made under Section 164 Cr.P.C., she had stated that PW-6 was on his bicycle and she was walking but in her statement made during trial she categorically stated that she was on the bicycle being driven by PW-6. As regard identification of the accused persons, she categorically stated in her cross examination that she could not recognize the accused persons due to darkness but she could recognize only the appellant Robin and such identification was helped by the police with the flashing of the torch light on them. On this, Ms. B. Das, learned Amicus Curiae representing the said appellant submits that it was just not possible for the victim to identify Robin upon flashing of torch light. According to her, identification of all the accused appellants including Robin was made since the police apprehended them suspecting them to be the culprits. 13. On this, Ms. B. Das, learned Amicus Curiae representing the said appellant submits that it was just not possible for the victim to identify Robin upon flashing of torch light. According to her, identification of all the accused appellants including Robin was made since the police apprehended them suspecting them to be the culprits. 13. PW-1 is the first informant and mother of the victim girl who in her deposition stated that her daughter was returning back from her work place along with PW-6. She used to return at about 6 PM. On being informed by the police she reached the Police Station at about 11-30 p.m. where she found her daughter along with other persons. In her cross examination, she stated that she was not aware as to where her daughter used to work, the vicitim in her deposition stated that she used to work with Golam. 14. PW-2 is a lady Home Guard of the Police Station who in her deposition stated that on 31/03/2009 she had seen the victim along with accused persons inside the lock-up. According to her testimony she could learn that while she was returning back along with one Mistri (PW-6) by bicycle, the accused persons took her away from the company of Mistri and then she was raped. She categorically stated that she was not shown the culprits by the victim. 15. PW-4 had written the FIR who in his deposition stated that he had written the FIR as per the version of the informant i.e. PW-1. PW-5 is the Constable who allegedly apprehended accused appellants from the place of occurrence. He in his deposition stated that on the date of incident at about 6 p.m., he was on duty near the Bongaigaon College and one man coming on a bicycle informed him that he heard scream of a girl near to the wooden bridge. On receipt of the said information he along with 4 (four) other constables proceeded to the spot. On their way, they met Jadu (appellant in Criminal Appeal No. 217/2013). On being asked, Jadu informed them that he did not see any girl. Thereafter, they could see Dimbeswar Choudhury (appellant in WA 189/2013) near to the bridge. He was also asked as to whether he had seen any girl but he also replied in negative and also stated that he was attending the call of nature. On being asked, Jadu informed them that he did not see any girl. Thereafter, they could see Dimbeswar Choudhury (appellant in WA 189/2013) near to the bridge. He was also asked as to whether he had seen any girl but he also replied in negative and also stated that he was attending the call of nature. After some time, both Jadu and Dimbeswar informed him that there was a girl. In the mean time, they found one bicycle and thereafter went to the spot which was at a distance of about 2 ½ KMs away and found the victim girl being raped by Robin (appellant in WA 75(J)/2013). They were found without any clothes on their body. Thereafter Robin along with other 3 (three) accused appellants were brought to the Police Station. 16. In the cross examination, this PW stated that there was a lady bicycle which was also brought to the Police Station. He categorically stated that from the bridge, they had to walk about 2 ½ KMs to reach the place of occurrence. Significantly, he also stated that when they had reached the spot, they did not hear any cry or scream from the girl. 17. PW-6 in his deposition stated that on the date of occurrence, he was coming along with victim girl and another person, namely, Habir from Chapaguri Bus stand. When they were proceeding towards the wooden bridge near to the Bongaigaon College, some boys who could not be recognized caught hold of the hands of the victim and although she tried to ran away but she was chased and thereafter the boys took her away. He was also chased but he could run towards Carbon Factory. He categorically stated that he could not recognize the miscreants as it was dark. 18. PW-8 is the seizure witness and PW-9 is the Magistrate who had recorded the statement of the victim girl under Section 164 Cr.P.C. PW-10 is the I.O. who carried out the investigation who in his deposition stated that it was Robin who had committed the offence punishable under Section 376 IPC. 19. It is on the basis of the aforesaid evidence, the learned trial court has convicted the accused appellants as aforesaid. As to what are the contradictions in the evidence of the PWs have been noted above. 19. It is on the basis of the aforesaid evidence, the learned trial court has convicted the accused appellants as aforesaid. As to what are the contradictions in the evidence of the PWs have been noted above. While in the FIR lodged by PW-1, there was no mention of the victim girl coming along with PW-6 and another Habir but as per the evidence of PW-6, he was coming along with the victim girl accompanied by one Habir. This Habir was not examined by the prosecution. 20. The victim girl in his deposition stated that she used to work with Golam (PW-6) but as per the evidence of PW-1 (mother of the victim), she was not aware as to where she used to work. There was also contradiction as to whether the victim was riding the bicycle or was coming on foot. While in her statement made under Section 164 Cr.P.C., she stated that PW-6 was on his bicycle and she was walking but in her testimony during trial that she stated that she was riding the bicycle along with Golam (PW-6). 21. PW-5 i.e. the constable who had allegedly gone to the spot did not hear any cry or scream of the victim girl. Other accused appellants were confronted by the Constable party at a distance of about 2 ½ KMs. It is in the evidence of the PW2 including the PW-7 that the accused appellants could not be identified. The only evidence against the accused appellant Robin is that the PW-7 could identify him when the torch light was flashed, but as submitted by Ms. B.Das, learned Amicus Curiae, it was just not possible for her to identify the culprit on flashing of torch light. It is in this context, she submitted in reference to the testimony of PW-2 that accused persons and the victim girl were brought to the Police Station and were kept inside the lock-up, that it was possible on the part of the alleged victim to see the accused appellants as were apprehended by the police with the accusation of committing rape on her. Significantly, the PW-2 in her deposition also stated that the victim did not point out towards the culprits i.e. the accused appellants. 22. Significantly, the PW-2 in her deposition also stated that the victim did not point out towards the culprits i.e. the accused appellants. 22. According to PW-5, he had gone to the spot on being informed by one man who was allegedly coming on a bicycle and informed him that he could hear the scream of a girl near to the wooden bridge. As discussed above, when the police party reached the spot they did not hear any scream or cry of the victim girl. 23. As to what is medical evidence has been referred to above. The victim girl was examined immediately after the alleged offence but no injury mark was detected either in her private parts or in any part of her body. It is in the above context, all the inherent contradictions in the evidence and the decisions referred to above have been referred to by Mr. R. De, learned counsel for the appellant Jadu Ray. As to what are the principles on which the said judgments are based have been discussed above. 24. Above being the position, I am of the considered opinion that the accused appellants are entitled to benefit of doubt. Accordingly all of them stand acquitted from the charges referred to above. The appeals are allowed setting aside and quashing the impugned judgement dated 15/06/2013 passed in Sessions Case No. 61(BGN)/2010. 25. All the accused appellants are on bail except Robin Sutradhar who is in jail custody ever-since he was convicted. He shall be released forthwith if not wanted in any other case. In case of other appellants, the bail bonds stand discharged. 26. Registry shall send down the case records immediately to the learned court below along with the copy of this judgment and order. 27. While appreciating the services rendered by Ms. B. Das, learned Amicus Curiae, representing Robin Sutradhar (Appellant in Crl. Appl(J) 75/2013), it is hereby provided that she will be entitled to hearing fee of Rs. 5,000/- (Rupees five thousand) and the same shall be paid to her by the appropriate authority on production of the copy of this judgment and order which shall be furnished to her by the Registry free of cost.