JUDGMENT & ORDER : 1. Heard Mr. D. Datta, learned counsel appearing for the appellant as well as Mr. A. Roy Barman, learned Addl. Public Prosecutor appearing for the State-respondent. 2. This appeal under Section 374(2) of the Cr.P.C. arises from the judgment and order of conviction and sentence dated 28.07.2015 delivered in Sessions Trial (NT/KMP) 21 of 2012 by the Addl. Sessions Judge, Unakoti Judicial District, Kamalpur. By the said judgment dated 28.07.2015, the appellant has been convicted under Section 354 of the IPC and sentenced to suffer RI for a period of one year with fine of Rs.10,000/- with default imprisonment. The appellant has as well been convicted under Section 341 of the IPC and he has been sentenced with fine of pay Rs.500/- but without any default imprisonment. 3. The prosecution against the appellant has been launched on the basis of the written complaint filed by the victim (the name is withheld for protecting her identity). The victim has stated in the complaint that when she was proceeding towards her maternal uncle’s house from her own house accompanied by one Mallika Das, the appellant and two other co-accused persons intercepted her near the area adjoining to the rubber plantation. The appellant and another accused person namely Bijit Deb grabbed the victim and took her to the lunga which falls within the rubber plantation by exercising criminal force and thereafter the appellant ‘raped’ her. According to the victim, the accused persons played the music system so loudly that her screams were not heard by any person from the adjoining locality. Taking advantage of that situation, the appellant aided by the accused persons raped her and left her unconscious in the said place. Somehow, she with help of one Mallika Das managed to come back to her home and narrated the story to one of her maternal uncles who was available there at the house of the victim. Based on the said written complaint (Exbt.1), Kamalpur PS. Case No.08 of 2011 was registered under Section 341/109/376 of the IPC. After the investigation was complete, the final report was submitted in the court of the Magistrate who finding that the alleged offence is exclusively triable by the Court of Sessions, forwarded the police papers by way of commitment to the court of the Additional Sessions Judge. On 21.09.2012, Addl. After the investigation was complete, the final report was submitted in the court of the Magistrate who finding that the alleged offence is exclusively triable by the Court of Sessions, forwarded the police papers by way of commitment to the court of the Additional Sessions Judge. On 21.09.2012, Addl. Sessions Judge framed the charge against the appellant under Section 376(1) of the IPC. The Addl. Sessions Judge, hereinafter the trial court, has framed the further charge under Section 341 read with Section 34 of the IPC and under Section 109 read with Section 376(1) of the IPC against the all the accused persons. The accused persons including the appellant denied the said charge and claimed to be tried. As a result, the trial commenced and to substantiate the charge, the prosecution adduced as many as 11 witnesses including the victim (PW-2) and the forensic expert (PW-11) et al. The prosecution has also adduced documentary evidence (Exbt.1 - Exbt.12) for purpose of driving the charge at home. From the side of the defence, no evidence as such been placed but by virtue of Exbt.A series and Exbt.B series, they introduced the final reports, depositions of PWs.1, 2, 3, 4, 5 and 6. In the similar fashion, one written objection has been admitted as Exbt.B series. On completion of recording of the prosecution evidence, the appellant and two other co-accused persons were examined under Section 313 of the Cr.P.C. for purpose of taking their response in respect of the incriminating materials those surfaced in the evidence. While making the statement under Section 313 of the Cr.P.C., the appellant reiterated his plea of innocence. On appreciation of the evidence on record, the charge under Section 376(1) of the IPC or the charge under Section 341 read with Section 34 of the IPC or the charge under Section 376(1) of the IPC read with Section 109 of the IPC was held not proved. However, the trial court has convicted the appellant under Section 354 and 341 of the IPC. The trial court has categorically observed that there is no sufficient material to hold even the co-accused namely Bijit Deb and Sudip Deb having abetted the offence. However, the trial court has convicted the appellant under Section 354 and 341 of the IPC. The trial court has categorically observed that there is no sufficient material to hold even the co-accused namely Bijit Deb and Sudip Deb having abetted the offence. Finally, the trial court has inferred that even though there are no materials to convict the appellant under Section 376(1) of the IPC but in the evidence there are materials to convict him under Section 354 of the IPC. Accordingly, the trial court by the impugned judgment convicted the appellant under Section 354 and 341 of the IPC and sentenced him to suffer RI for one year with fine of Rs.10,000/-, in default to suffer RI for three months. The appellant was also directed to pay a fine of Rs.500/- for commission of offence punishable under Section 341 of the IPC. It has been directed that the period of detention suffered during investigation and trial shall be set off from the substantive sentence of imprisonment. 4. Mr. Datta, learned counsel for the appellant has strenuously argued that even the conviction under Section 354 of the IPC or under Section 341 of the IPC is not tenable in law inasmuch as there is no reliable evidence to hold that the appellant applied the criminal force on the victim with intent to outrage her modesty or that the victim was assaulted by the appellant. Mr. Datta, learned counsel however did not make any submission on conviction under Section 341 of the IPC. But he has submitted that the entire prosecution is based on the false statement made in the written ejahar, Exbt.1 and hence the appellant is entitled to get an order of acquittal from this court. To support his submissions, as briefly recorded hereinabove, Mr. Datta, learned counsel has relied on a decision of the apex court in Rajoo and others vs. State of MP reported in AIR 2009 SC 858 where the apex court has observed as under: “The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspect and should be believed, the more so as her statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the Court. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.” Mr. Datta, learned counsel for the appellant has submitted further that there was previous enmity and as an outcome of that enmity, the appellant has been framed falsely in the case and as such on fresh appreciation of the evidence, he may be acquitted from the charge. 5. Mr. Roy Barman, learned Addl. PP in order to repel the submissions made by the learned counsel for the appellant has submitted that there is no infirmity in the finding of conviction as the conviction is wholly based on sound appreciation of the evidence, recorded in the trial. Mr. Roy Barman, learned Addl. PP has submitted that there cannot be any reason to disbelieve the testimony of PW-1 (the victim). Her statement is so natural and convincing that her statement cannot be suspected inasmuch as the victim is an injured witness whose statement carries strong probative value. Mr. Roy Barman, learned Addl. PP has further submitted that there cannot be any other tenable reason for which the testimony of the victim can be discarded. The trial court has correctly relied on her statement and arrived at the inference which has been challenged by the appellant. According to Mr. Roy Barman, learned Addl. PP there is no substance in this appeal and that must see the dismissal on affirmance of the finding of conviction and the consequential order of the sentence. 6. The trial court has correctly relied on her statement and arrived at the inference which has been challenged by the appellant. According to Mr. Roy Barman, learned Addl. PP there is no substance in this appeal and that must see the dismissal on affirmance of the finding of conviction and the consequential order of the sentence. 6. While appreciating the submissions made by the learned counsel for the parties, this court finds it apposite to make a short re-scan of the evidence to examine whether the finding of conviction as returned by the trial court can be sustained or would be interfered with or modified. PW-1 (the victim) testified in the trial that she was intercepted and forcibly dragged inside the rubber plantation having aided by two co-accused persons, who are acquitted, and her dresses were put off and she was raped. She and her companion namely Mallika Das raised alarm but for playing of sound system loudly, nobody noticed their scream or alarm. The appellant left the victim (PW-1) unconscious. Somehow, she with the help of her companion namely Mallika Das had been able to come back to her house where she had narrated the heart-wrenching occurrence and later on a written complaint was filed on the following day i.e. 29.01.2011, when the occurrence had taken place on 28.01.2011 at about 3.30 p.m. There had been a delay of almost a day, but the defence did not question that delay in any manner. PW-2, Smt. Kalpana Das, is the mother of the victim. She has stated that the victim narrated the occurrence on her return. She had also noticed that her wearing apparels was strewn with some ‘dirty straw’ (the grass). It indicated that she was laid on the ground and from her statement she gathered that she was raped. She had also stated that the victim was medically examined but when the attention of PW-2 was drawn to her statement recorded under Section 161 of the Cr.P.C., she has clearly admitted that there was no such statement in this regard but she has asserted that she had made such statement to the investigating officer. She has categorically asserted that she had stated to the investigating officer that the appellant committed rape on her daughter, but she denied categorically that she was ever agreed to give marriage of her daughter with the appellant. PW-3, Ms. She has categorically asserted that she had stated to the investigating officer that the appellant committed rape on her daughter, but she denied categorically that she was ever agreed to give marriage of her daughter with the appellant. PW-3, Ms. Chumki Das Gupta, is a close relative of the victim. She has testified that in her presence the wearing apparels of the victim viz. salowar, kurta and panty were seized and she had signed the seizure list (Exbt.2). PW-4, Dr. Anjan Das, who examined the victim medically on requisition of the police. He has categorically stated that he did not find any external or internal injury in the victim, except one abrasion of size 3x14 cm at the left buttock. PW-4 has categorically stated that he prepared the medical examination report and he gave the opinion there. From the medical examination report, Exbt.3, it appears that PW-4 has clearly opined that since there is no injury and as the hymen remained un-torn, it cannot be held that the victim was forcibly assaulted or raped by the appellant or any other person. PW-5, Kamalesh Deb, is the scribe and he has not given any further input as the witness. PW-6, another doctor namely, Dr. Chandan Debbarma had examined the appellant and opined that there was nothing on the basis of which it can be stated that the appellant was impotent or suffering from incapacity to do the sexual intercourse. He identified his own medical report, Exbt.4. PW-7, namely Smt. Shibani Deb, a witness from the neighbourhood did not say anything about the case. Simply she had identified the appellant and two other co-accused persons in the dock. For not supporting the prosecution’s case, she was declared hostile and was cross examined by the Public Prosecutor. Her cross examination was elaborately recorded by the trial court. In the cross examination, PW-7 has categorically stated that her daughter, namely Mallika Das is not allowed to go alone. But she had denied in the trial that the appellant or the co-accused persons were associated with any crime or crimes of stealing fishes from the Government ponds. PW-8, Gautam Deb, is another witness from the neighbourhood. In the cross examination, PW-7 has categorically stated that her daughter, namely Mallika Das is not allowed to go alone. But she had denied in the trial that the appellant or the co-accused persons were associated with any crime or crimes of stealing fishes from the Government ponds. PW-8, Gautam Deb, is another witness from the neighbourhood. He did not support the prosecution’s case and as consequence, he was declared hostile and the prosecution cross examined PW-8, but their attempt to get the statement as recorded by the police officer under Section 161 of the Cr.P.C. admitted by PW-8 has failed. Rather, this witness has confirmed the previous enmity between the accused and the victim’s family. PW-9, Sri Raj Kumar Ghosh, has stated in the trial that in connection with some occurrence that took place in his rubber plantation, the police had appeared to investigate the matter. But he had no personal knowledge about the same. But he knew the accused persons from earlier. PW-9 has further testified that he had attended the meeting of the panchayat but in that meeting he did not gather anything about the said incidence on the basis of which the police case was registered. PW-10, Uttam Sarkar, a Sub-Inspector of Police, had investigated the case. He has briefly narrated how he recorded the evidence and later on how he had sent the materials to the Forensic Science Laboratory (FSL). From getting the report from the hospital and the FSL, he had compiled the materials together to make serious assessment and filed the final report under Section 173(2) of the Cr.P.C. He filed the report charge-sheeting the appellant and other two co-accused persons. The trial court framed the charge in the due course under Section 376(1) of the IPC only against the appellant, not against the two other co-accused persons. The two other co-accused persons were charged for collaborating rape and criminal restraint. They were acquitted by the trial court on benefit of doubt. 7. Mr. Datta, learned counsel for the appellant has strenuously submitted that the accusation being the same against the other two co-accused persons and when they have been acquitted on the same set of evidence, the appellant cannot be convicted under Section 341 of the IPC. Mr. They were acquitted by the trial court on benefit of doubt. 7. Mr. Datta, learned counsel for the appellant has strenuously submitted that the accusation being the same against the other two co-accused persons and when they have been acquitted on the same set of evidence, the appellant cannot be convicted under Section 341 of the IPC. Mr. Datta, learned counsel thus has repeatedly pressed hard before this court that by dint of the same evidence, the appellant can be convicted under Section 341 of the IPC. 8. Mr. Roy Barman, learned Addl. PP has contended that there is no infirmity in the finding as returned by the trial court and hence no interference is called for. According to him, the statements of the victim and her mother are adequate enough to return the finding of the conviction under Section 354 of the IPC. 9. It is to be noted here that PW-11, the forensic expert, Dr. Subhankar Nath, testified in the trial and stated that no seminal stain/spermatozoa could be detected in the wearing apparels of the victim not even in the vaginal swab. However, in the vaginal swab blood could be detected. But for obvious reasons, blood grouping of Exbt.D has been dispensed with. 10. From appreciation of the evidence and the grounds of objection as projected in this appeal, the solitary question that emerges for consideration of this court is that whether the statement of the victim should be believed by this court or not. True it is that there is no universal rule that the statement of the prosecutrix has to be believed and it cannot be made suspect. It can be made suspect when the other material show that the victim was not stating the real fact. Even if it is found that the victim is exaggerating the fact which has not been corroborated by the medical evidence. Since in our country, the principle of falsus in uno falsus in omnibus is not accepted as the evidentiary rule, the entire evidence of the prosecutrix cannot also be discarded. We are confronted with the similar case here. Even if it is found that the victim is exaggerating the fact which has not been corroborated by the medical evidence. Since in our country, the principle of falsus in uno falsus in omnibus is not accepted as the evidentiary rule, the entire evidence of the prosecutrix cannot also be discarded. We are confronted with the similar case here. There cannot be any doubt even though the victim has repeatedly stated that she was raped but the medical examination had discarded that allegation and as a result, the trial court has correctly observed that there is no material to convict the accused on the charge under Section 376(1) of the Cr.P.C. Believing a part of the statement, the conviction has been returned under Section 354 of the IPC along with 341 of the IPC for interception. 11. Now, whether in this circumstances, the conviction can be upheld or not. On the face of the testimony of PW-1, it appears that she was not stating in the court truthfully under oath. She has stated brazenly that she was raped but the medical evidence unwaveringly had established that there was no sign of rape at all, except there is an abrasion of the buttock of the victim. PW-2, mother of the victim, has stated that the victim after reaching home has stated the story. In the backdrop of the previous enmity and withholding of one of the important witness namely Mallika Das by the prosecution makes the testimony of the victim more suspect and hence the appellant is entitled to get the benefit of these elements as pointed out. 12. Thus, this court is of the view that the conviction as returned under Section 354 of the IPC or under Section 341 of the IPC is required to be interfered with and accordingly it is interfered. The appellant is acquitted from the charge under Section 354 and 341 of the IPC on benefit of doubt. Since it has been stated at the Bar that the appellant is on bail, the sureties are discharged from their respective obligations. In the result, this appeal stands allowed and disposed of. Send down the LCRs forthwith.