JUDGMENT : Rongon Mukhopadhyay, J. Heard the parties. 2. This application is directed against the judgment dated 9.6.2004, passed by the learned 1st Additional Sessions Judge, Gumla in Cr. Appeal No. 71 of 2000, whereby and where under judgment and order of conviction and sentence dated 25.11.2000, passed by the learned 1st Assistant Sessions Judge, Gumla in Sessions Trial No. 175 of 1986 convicting the petitioner for the offence under sections 376 and 342 of the Indian Penal Code and sentencing him accordingly has been affirmed. 3. The prosecution story in brief is that the prosecutrix along with her aunt had gone to the house of the informant and it is alleged that on Monday she had gone to the house of her friend-Mangaldani. The petitioner and other accused persons took her for meal to the house of Chauthi Orain where two accused persons were present there. It has been alleged that petitioner and others closed the door and committed rape upon her. When a search was made, she was found in the house of Chauthi Orain. Accused had managed to flee away. 4. Based on the aforesaid allegations, G.R. Case No. 184 of 2004 was instituted. Investigation resulted in submission of charge sheet and after cognisance was taken, case was committed to the court of sessions. Charge was framed under section 376/342 of the Indian Penal Code and trial proceeded. In course of trial, five witnesses were examined by the prosecution. 5. P.W-1-Sunil Toppo and P.W-2-Ahlad Toppo did not support the prosecution case and they were declared hostile. 6. P.W-3-Sarbdani Baxla is the victim girl, who has stated that she had gone to the house of Mangaldani along with Shanti. She has deposed that Jairam and Biraj Kerketta-petitioner took her to the house of Chauthi Oraon and all the four persons present had committed rape upon her. She has stated that Bilkan, Filmon, Semon and Suresh had come, upon which, the accused persons had fled away. She has stated that she was examined in the hospital on the next day. She has admitted that she was not knowing the accused from before. 7. P.W-4-Suresh Toppo is the informant, who has stated that the victim had come to his house and on Monday she had gone to the house of her friend and when she did not return, on search, she was found in the room of Mangra. She has admitted that she was not knowing the accused from before. 7. P.W-4-Suresh Toppo is the informant, who has stated that the victim had come to his house and on Monday she had gone to the house of her friend and when she did not return, on search, she was found in the room of Mangra. He has stated that after she regained sense, she narrated the occurrence. This witness was declared hostile by the prosecution. 8. P.W-5-Marium Xess has stated that when the victim was searched she was found in the house of Chauthi Oraon. No one was present in the house. She has stated that when she regained sense, she disclosed about the occurrence and about the perpetrators of the offence including the petitioner. 9. It has been submitted by the learned counsel for the petitioner that prosecution has failed to prove its case in absence of necessary and important witnesses. It has further been submitted that the Investigating Officer and doctor were not examined and medical report was also never exhibited. It has also been submitted that Mangaldani and Shanti, both important witnesses were never examined by the prosecution. Learned counsel submits that on account of dearth of evidence to prove the guilt of the petitioner, he deserves acquittal for the offence under sections 376 and 342 of the Indian Penal Code. 10. Learned A.P.P. has opposed the prayer made by the learned counsel for the petitioner. 11. It is an admitted fact that the Investigating Officer as well as the Medical Officer had not been examined by the prosecution. Victim was medically examined but the medical report has also not been brought on record to support her said contention. Victim examined as P.W-3 has stated that she had gone to the house of Mangaldani along with Shanti. Whether the said fact was true could only have been detected if Mangaldani and Shanti were examined by the prosecution. Absence of examination of two vital witnesses also puts a clog in the wheel of the prosecution in proving the guilt of the petitioner. It further shows that several persons have been named by P.W-3 to have come for her search but none of the persons conducting the search had been examined except the informant-Suresh Topno, who had been declared hostile by the prosecution. It further appears that P.Ws. It further shows that several persons have been named by P.W-3 to have come for her search but none of the persons conducting the search had been examined except the informant-Suresh Topno, who had been declared hostile by the prosecution. It further appears that P.Ws. 4 and 5 had stated about P.W-3 being unconscious but the said fact has been contradicted by the evidence of P.W-3-herself as she had specifically taken the name of the persons who had come to rescue her, at which the accused persons had fled away. It is all the more surprising that as per her own version, P.W-3 did not know the accused from before but she accompanied them to the house of Chauthi Oraon without raising any question. It further appears that P.W-3 had stated that she did not know the accused persons but it is also all the more surprising once again as to how she had disclosed the name of the accused persons. The prosecution has miserably failed to prove its case against the petitioner as has been indicated above that not a single witness had been examined by the prosecution, which would reveal the complicity of the petitioner in committing rape upon the victim. The circumstances enumerated above having not been considered either by the learned trial court or by the learned appellate court while convicting the petitioner for the offence under sections 376/342 of the Indian Penal Code, the impugned judgement is hereby set aside. This application is allowed. 12. The petitioner is discharged from the liability of his bail bond. Application allowed.