JUDGMENT : Heard learned counsel for the appellant and learned Addl. P.P. for the State. 2. The appellant has filed this appeal being aggrieved by the Judgment of conviction dated 06.09.2005 and Order of sentence dated 08.09.2005 passed by the learned 1st Additional Sessions Judge-cum-Special Judge, Dumka, in Special Case No. 03 of 2002 whereby and where under, the appellant has been held guilty for the offence punishable under section 354 of the Indian Penal Code and has been sentenced to undergo Rigorous Imprisonment for two years with fine with default clause and has also been convicted for the offences punishable under section 3 (1) (x) (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced to undergo Rigorous Imprisonment for a period of four years with fine with default clause and all the sentences were directed to run concurrently. 3. The case of the prosecution as unfolded in the fardbeyan of the victim is that in the intervening night of 23/24th February,2001 the victim had gone to watch the dance and song of the Santhal Panchras Yatra Party along with her sister (P.W.3) and other villagers. The P.W.2 also came to watch the said show. At about 02:00 A.M., the informant-victim (P.W.1) came out with P.W.2 who was the younger brother of the fiancée of the elder sister of the victim (P.W.3) to pee outside. When they were coming after easing themselves in a secluded place, five unidentified persons came. Three of the unidentified persons caught hold of the P.W.2 and took him to a distance. Two of them caught hold of the informant-victim (P.W.1) and felled her on the ground. One of them gagged the mouth of the informant-victim while the other one was wanting to force himself in the vagina of the informant-victim. By that time the P.W.1 somehow managed to free her mouth from the clutch of the unidentified person and raised alarm. At this, two of the volunteers of the Fair Committee came running there and seeing them, all the five unidentified persons started fleeing away. In the process of fleeing away, the person who gagged the mouth of the P.W.1 was caught by the two volunteers and the P.W.2. In the process of being caught, the said person also sustained injury. On being inquired, the said person disclosed himself to be the appellant-accused person of this case. In the process of fleeing away, the person who gagged the mouth of the P.W.1 was caught by the two volunteers and the P.W.2. In the process of being caught, the said person also sustained injury. On being inquired, the said person disclosed himself to be the appellant-accused person of this case. He also disclosed the names of other four unidentified persons. By that time, many people assembled there and after taking the statement of the victims, decided for a Panchayati. By that time, police arrived at the spot and recorded the fardbeyan of the informant basing upon which Jarmundi P.S. Case No. 15 of 2001 was instituted and police took up investigation of the case. 4. After completion of the investigation, police submitted police report against the appellant-accused person and three others. Upon commitment of the case to the court of session, charges for the offence punishable under section 379/34, 376/511 of the Indian Penal Code and under section 3 (1) (x) (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 were framed against the appellant-accused person. The appellant-accused person pleaded not guilty upon which they were put to trial. 5. In support of its case, the prosecution has altogether examined 10 witnesses besides proving the documents. The appellant-accused person did not adduce any evidence in his defence. Out of the 10 witnesses examined by the prosecution, P.W.1 is the informant-victim herself. She has stated that the occurrence took place in the night of Shivratri in the year 2001. She had gone to watch the drama. She went out for peeing. The appellant-accused person caught hold of her. The appellant-accused person was apprehended on alarm being raised. The appellant-accused person caught hold of her with an evil intention. On being apprehended, the appellant-accused person disclosed his name. She does not remember the name of any other person except the appellant-accused person. She gave her statement in the police station and also put her thumb impression. She identified the appellant-accused person in court. In her cross-examination, the P.W.1 has stated that the place where the drama was being staged is adjacent to the police station. The appellant-accused person is older than her. When the drama starts the gates are closed and the same is opened only when the drama is over. There was rush in the place because of the Shivaratri Fair. In her cross-examination, the P.W.1 has stated that the place where the drama was being staged is adjacent to the police station. The appellant-accused person is older than her. When the drama starts the gates are closed and the same is opened only when the drama is over. There was rush in the place because of the Shivaratri Fair. The shops remain opened till late night and the shop keepers also stay there. A hutment is situated adjacent to the place where the drama was staged. She gave her statement in Santhali language. She stated before police that the appellant-accused person took her with an evil intention. 6. P.W.2 – Keshtu Marandi has stated that the occurrence took place three years prior to his deposing in court. He was examined in court on 25.03.2003. At the time of the fair of the Shivratri, he went to Basukinath fair and he was watching Panchras Drama. P.W.2, his sister-in-law and wife whose name he does not know, also went to watch the fair. The sister of his sister-in-law (Bhabhi) went out with him. Two persons caught hold of the sister of his Bhabhi and two persons caught hold of the P.W.2. The members of the Panchras Committee came and caught hold of the P.W.2 as well as another person and took them. The sister of his sister-in-law told that attempt of rape was made upon her. He identified the person who was apprehended on the date of occurrence in court. In his cross-examination he has stated that it was the day of Shivratri and many people were present there. During the time of Shivratri the shops remain opened during the day and night. The police station is situated by the side of the place of the occurrence and police are also deputed at the place. There is a hutment adjacent to the place of occurrence and in one side the bus stand is situated. 7. P.W.3 – Sonamuni Hansda is a hearsay witness. She has stated that she heard that four persons caught hold of the P.Ws. 1 and 2 and they wanted to commit rape upon the P.W.1 after removing her clothes. On alarm being raised, people arrived there and the appellant-accused person was apprehended. In her cross-examination, she has stated that she deposed whatever she was told by her sister. 8. P.W.4 – Shivshankar Pandey is also a hearsay witness. 1 and 2 and they wanted to commit rape upon the P.W.1 after removing her clothes. On alarm being raised, people arrived there and the appellant-accused person was apprehended. In her cross-examination, she has stated that she deposed whatever she was told by her sister. 8. P.W.4 – Shivshankar Pandey is also a hearsay witness. He has stated that on 23.02.2001 he heard about some commotion. 9. P.W.5 – Ranjeet Kumar Pandey has stated that he does not know anything about the occurrence. 10. P.W.6 – Jayprakash Pandey is a Home Guard. He has only stated that at the time of occurrence he was on duty at S.P. College. 11. P.W.7 – Munsi Hansda is a hearsay witness. He is the father of the P.W.1. He has stated that he was informed that P.W.1 went to watch the Santhali Panchras Fair and there was some altercation with the appellant-accused person. He could not identify the appellant-accused person. 12. P.W.8 – Chadka Kisku did not support the case of the prosecution and he was declared hostile. Even though the prosecution put leading questions to him, still he did not support the case of the prosecution. 13. P.W.9 – Ganesh Soren was tendered for cross-examination only. 14. P.W.10 – Birsa Toppo is the investigating officer of the case. He has stated that he was posted as D.S.P., Dumka on 24.02.2001. He got information at 10:30 A.M. that in Jarmundi Police Station one case of S.C/S.T. has been instituted hence he reached Jarmundi Police Station. He saw the statement of the informant in the police station. On being proved by him the signature of P.W.3 on the fardbeyan was marked Ext.1, the fardbeyan was marked Ext.1/1 and the formal F.I.R was marked Ext.2. He described the place of occurrence with its boundaries. He recorded the restatement of the P.W.1 and the statement of the witnesses of the case. On 28.08.2001 on his transfer, he handed over the charge of investigation to D.S.P. – Rajesh Kumar Singh. On being proved by him the charge sheet has been marked Ext.3. In his cross-examination he has stated that the case diary has been written as per his dictation. It has not been mentioned in the case diary at what time he reached the police station or the place of occurrence. On being proved by him the charge sheet has been marked Ext.3. In his cross-examination he has stated that the case diary has been written as per his dictation. It has not been mentioned in the case diary at what time he reached the police station or the place of occurrence. It has not been mentioned in the diary as to who has written the diary nor is the signature of the person in whose handwriting the diary has been written appearing in the diary. 15. After closure of the evidence of the prosecution, statement under Section 313 Cr.P.C. of the appellant-accused person regarding the circumstances appearing against him was recorded wherein he was asked questions as to whether he attempted to commit rape along with co-accused persons and whether he fled away with the silver chain of the P.W.1. The appellant-accused person denied both the questions and pleaded innocence. 16. Learned trial court after considering the evidence in the record convicted and sentenced the appellant-accused person as already indicated above. 17. Mr. Praveen Shankar Dayal, the learned counsel for the appellant submits that the learned court below failed to appreciate the evidence in the record in its proper perspective. It is further submitted by the learned counsel for the appellant that the prosecution case was based only on the testimonies of two alleged eye witnesses being the P.Ws.1 and 2. Other prosecution witnesses do not have any personal knowledge about the case. It is then submitted that the P.Ws.1 and 2 have made material departure in their testimonies from that of the fardbeyan and there is no specific allegation of any force to outrage the modesty of the P.W.1 or assault having been made to the P.W.1 is appearing in the depositions of the prosecution witnesses. It is further submitted that there is major contradictions between in the testimonies of the P.W.1 and P.W.2 as well as their testimonies of the P.W.1 and 2 and the fardbeyan which has been marked as Ext. 1/1. It is further submitted that the testimony of P.W.2 that he was also apprehended along with the appellant-accused person by the members of the fair committee creates a doubt about the prosecution case. It is next submitted that in the absence of any evidence of any specific overt act attributed to the appellant, learned court below has erroneously convicted the appellant-accused person. It is next submitted that in the absence of any evidence of any specific overt act attributed to the appellant, learned court below has erroneously convicted the appellant-accused person. Hence, it is submitted that the impugned judgment of conviction and order of sentence be set aside and the appellant-accused person be acquitted by at least giving him the benefit of doubt. 18. Learned Addl. P.P. on the other hand submitted that the P.Ws.1 and 2 have supported the case of the prosecution and have deposed about the ingredients of the offence punishable under Section 354 of the Indian Penal Code as well as under Section 3 (1) (x) (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Hence, it is submitted that the evidence in the record is sufficient to establish the charges for the offences punishable under Section 354 of the Indian Penal Code as well as 3 (1) (x) (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and the learned trial court having rightly convicted the appellant-accused person, this appeal being without any merit be dismissed. 19. Having heard the submissions made at the Bar and after going through the record, I find that there is material departure in the testimonies of both the P.Ws.1 and 2 from the fardbeyan of P.W.1 which was marked Ext.1/1. In the fardbeyan, it was alleged by the P.W.1 that five unidentified persons were there and three of them caught hold of P.W.2 while two of them caught hold of P.W.1 and the name of all the five persons have also being mentioned in the fardbeyan on being allegedly disclosed by the appellant-accused person. The P.W.1 though in her fardbeyan has stated that the appellant-accused person has gagged her mouth but in her testimony in court she has not stated that the appellant-accused person gagged her mouth rather she stated that the appellant-accused person has caught hold of her and took her to a distance which is a material departure from her fardbeyan. Further the P.W.1 has not even whispered about the four other accused persons whose names she mentioned in her fardbeyan or that they have done any overt act. The testimony of P.W.1 implies that the appellant-accused person was the only offender present at the spot. Further the P.W.1 has not even whispered about the four other accused persons whose names she mentioned in her fardbeyan or that they have done any overt act. The testimony of P.W.1 implies that the appellant-accused person was the only offender present at the spot. The P.W.2 has made a material departure from the fardbeyan of the P.W.1 by stating about the presence of only four persons out of whom two caught hold of the P.W.1 while the rest two caught hold of the P.W.2. Further the P.W.2 has stated that the Panchras Committee members caught hold of him along with appellant-accused person and he also stated that the P.W.1 told him that attempt of rape was made upon her which implies that the P.W.2 is not an eye-witness to the alleged occurrence of any offence having been committed with the P.W.1 though as per the case of the prosecution both P.W. 1 and P.W. 2 are the eye witnesses to the occurrence. The testimony of the P.W.2 that he was also apprehended by the Panchras Committee members certainly raises a doubt about the prosecution case because had the prosecution case been true, there was no occasion for the committee members to apprehend the P.W.2. So far as the testimonies of the other prosecution witnesses are concerned, they are either not the eye-witness to the occurrence or they have not deposed any relevant facts to implicate the appellant-accused person with the charges faced by him in the trial. 20. Considering the aforesaid facts and circumstances of the case, this Court is of the considered view that this is a fit case where the appellant-accused person be acquitted by giving him the benefit of doubt. 21. Accordingly, the impugned Judgment of conviction dated 06.09.2005 and Order of sentence dated 08.09.2005 passed by the learned 1st Additional Sessions Judge-cum-Special Judge, Dumka, in Special Case No. 03 of 2002 being not sustainable in law is set aside and the appellant-accused person is acquitted of all the charges faced by him in the trial. The appellant-accused person is in custody. In view of his acquittal, he is directed to be released from custody forthwith unless his detention is required in connection with any other case. 22. In the result this appeal is allowed. 23. Let a copy of this judgment be sent to the learned court below forthwith.