A. H. Saikia, J. — Both these 2 (two) appeals have been directed against the impugned judgment and order dated 25.8.98 passed by the Additional Sessions Judge, Belonia, South Tripura in Sessions Trial No. 15(ST/B)/1998, by which both the appellants were convicted under sections 376 (2) (g) IPC and the appellant Shri Sushanta @ Tutan Chakraborty @ Bhattacharjee (for short Sushanta) was also convicted under section 366A. We propose to dispose of both the appeals by this common judgment. 2. The appellant Sushanta in Criminal Appeal (J) No. 59 of 1998 was convicted trader section 366A and 376 (2) (g) IPC and accordingly he was sentenced under section 366A IPC to suffer RI for 7 years and to pay a fine of Rs. 3,000 and in default of payment of fine to suffer further RI for 6 months and further to suffer RI for 12 years and to pay a fine of Rs. 15,000 and in default of fine, to , suffer further RI for 3 years for the offence under section 376 (2) (g) IPC. 3. On the other hand, the appellant Shri Haradhan Paul in Criminal Appeal (J) No. 47 of 1998 was convicted only under section 376 (2) (g) IPC and sentenced to suffer RI for 10 years and to pay a fine of Rs. 7,000 and in default of payment of fine, to suffer further RI for 2 years 4. Unfurling the prosecution story, the PW 4 Smti Rupali Das, the prosecutrix, narrated that on 16.2.97 in the afternoon, she went to visit 'Surjya Mela' (fair) at Kalabaria School Ground at village Jirtali accompanied by a neighbourhood "sister-in-law, Sefali Das and at the place of fair, Sushanta, the appellant called her to come a little away from school ground and to accompany him to somewhere which she refused. On her refusal the appellant threatened her at dagger point and directed her to follow him. Accordingly out of fear she accompanied him. The appellant took her to Uttar Kalabaria School field. Sushanta told her that he will marry her and proposed to do bad things with her which she refused. There the other appellant, Shri Haradhan Paul also came and met Sushanta. Having some talks between them, Sushanta went a little away. Then Haradhan forcibly committed rape on her. Thereafter both the appellants had taken her to somewhere in the house of one Shillong Mog. There the other appellant, Shri Haradhan Paul also came and met Sushanta. Having some talks between them, Sushanta went a little away. Then Haradhan forcibly committed rape on her. Thereafter both the appellants had taken her to somewhere in the house of one Shillong Mog. They kept her in the house of said Shillong Mog. During the night, there Sushanta told her that since her future already condemned, she must obey him and accordingly he also committed rape on her. On the following morning Haradhan again came to the house of Shillong Mog and Sushanta left for Belonia to bring cloth (saree), conch and vermilion etc for the purpose of marrying her. At noon time when all the inmates of the house of Shillong Mog were away from the house, Haradhan came there and again committed rape on her finding her alone for a considerable time. In the afternoon Sushanta came with saree, conch and vermilion and she was compelled to wear saree, conch and to put vermilion on her forehead and thereafter through jungle both the appellants took her on the main road and with a vehicle she was taken to Santirbazar, where she kept in a hotel just near a cinema hall and Haradhan left the place. In the hotel also during the night Sushanta committed inter course with her. On the following day Sushanta hired a rented room in the house of Jogesh Patari, PW 8 and kept the victim girl, PW 4 in that house introducing her as his wife. They lived in the said rented house for 15/16 days and during those days Sushanta did intercourse with her on repeated occasions. Thereafter, the appellant Sushanta told her to wipe out vermilion and to break open the conch and to return home. When the prosecutrix told him that in that situation she could not return and he should keep her, Sushanta told her that he did not marry her and unless she went home he would leave her there alone. On request Sushanta took her to the house of her friend Smti Aparna Das, wife of Shri Nakul Das, PW 2 at Uttar Sonaichari. Accordingly, he took her to the house of said Aparna Das and then she told her friend to send information to her parents and accordingly the husband of her friend, Shri Nakul Das informed her parents. On request Sushanta took her to the house of her friend Smti Aparna Das, wife of Shri Nakul Das, PW 2 at Uttar Sonaichari. Accordingly, he took her to the house of said Aparna Das and then she told her friend to send information to her parents and accordingly the husband of her friend, Shri Nakul Das informed her parents. On the following day in the early morning some of her neighbours, namely, Shri Gouranga Das, PW 5, Shri Debendra Das, PW 3 and Shri Jitendra Das, PW 6 went to the house of PW 2 and brought her with the appellant Sushanta to the house of Shri Arun Chandra Das, PW 7 at village Kalahari. 5. In the meantime, on coming to know about the information of his daughter, Smti Grantha Das, PW 1, the mother of the prosecutrix on 5.3.97 lodged an FIR with the police of Belonia PS and after filing the ejahar, the PW 1 went to the house of said Shri Arun Chandra Das, PW 7 and the prosecutrix narrated the entire occurrence to her mother. 6. On receipt of the said FIR, the police registered a case being Belonia PS Case No. 18/97 under section 366/34 IPC and started investigation. The PW 4, the victim girl was referred to the Court of SDJM, Belonia and her statement was recorded under section 164 Cr PC. She was also medically examined at Belonia Hospital. Both the appellants were arrested during the course of investigation and forwarded to the Court. On completion of investigation, charge sheet was submitted against both the appellants under sections 366/34/376 (2) (g) IPC. 7. We have heard at length Mr. AC Bhowmik, the learned counsel appearing on behalf of the appellants and also Mr. D. Sarkar, learned Public Prosecutor for the respondent. 8. In both the criminal appeals, we are confronting with two main issues, namely, (1) whether both the appellants are liable for conviction under section 376 (2) (g) IPC, and (2) whether the appellant Sushanta can be convicted for offence of abduction ? 9. As regards the conviction of both the appellants under section 376 (2) (g) IPC, let us examine carefully the material evidences adduced against the appellants in this regard including the medical evidence. 9. As regards the conviction of both the appellants under section 376 (2) (g) IPC, let us examine carefully the material evidences adduced against the appellants in this regard including the medical evidence. The medical examination report may be referred as follows : "Brief History : Miss Rupali Das stated that she was raped by Tutan Chakraborty and last intercourse took place 3 days back. She also stated that, she has taken bath, changed her clothing after the last intercourse. She was examined with the written consent of her and her mother. She was examined medically in presence of sister Maya Chakraborty and Chhaya Rani Saha of Belonia Hospital. On Medical Examination: Higher function intact, all secondary sex characters well developed, no injury mark, mark of violence, semen, foreign hairs, and fibres are seen in her body or private parts clothing. Vaginal examination: Vagina admits (Rt) middle and index finger, hymen absent, no injury or bleeding seen in vagina or cervix: Vaginal swab taken from three sites of fomix. Vaginal swab and smear specimen with proper labelling, handed over to SI of Police Belonia PS Shri Paltan Laskar for Pathological examination by Pathologist at TS Hospital, Udaipur. For determination of age, IO Sri Paltan Laskar was advised to take her to Radiologist at TS Hospital, Udaipur. Comment: There is no positive clinical findings in favour of recent sexual intercourse, her private parts are intact, hymen is absent, no stain, foreign hair or fibres seen in her body, private parts or clothing. Age of victim girl to be determined by Radiologist at TS Hospital, Udaipur." 10. PW 13, Dr. Aryan Kumar Chakraborty, who examined the posecutrix, in his evidence, relying on his report, adduced that he did not find any immediate finding of inter course and it was difficult for him to ascertain as to when for the last time the victim girl had undergone intercourse. He also found that there was c no injury or bleeding in the vagina or cervix. He found her private parts were intact but hymen was absent and vagina admitted two fingers i.e (right) middle and index finger. On the other hand, he did not find any stain or foreign hairs or fibres in her body or private parts. He also found that there was c no injury or bleeding in the vagina or cervix. He found her private parts were intact but hymen was absent and vagina admitted two fingers i.e (right) middle and index finger. On the other hand, he did not find any stain or foreign hairs or fibres in her body or private parts. As regards the age, the doctor opined that he advised the Investigating Officer to ascertain her age after examination by Radiologist though he noted the age of the victim girl as 16 years only as per her statement, 11. Taking into consideration the medical evidence ex-facie, it can be well said that no mark of violence or injury were seen in the body or private parts of the prosecutrix. The Doctor was also not sure either about the age of the prosecutrix or when she undergone intercourse. In view of the said Medical Report, as well as the evidence of Doctor, PW 13, it can be said that the medical examination was incapable of yielding conclusive result as regards the commission of offence of gang rape under section 3 76 (2) (g) IPC in order to prove the case of the prosecution. 12. Assailing the impugned judgment, Mr. AC Bhowmik, learned counsel for the appellants, submitted that the learned trial Judge has committed error in appreciating the evidences of the witnesses, mainly PW 4, the prosecutrix, PW 1, the mother, PW 8, Shri Jogesh Patari and PW 9 Shri Shillong Mog, in its proper perspective. It is submitted that the statement of the prosecutrix, PW 4 is absolutely unreliable and fabricated and the same cannot be the basis of conviction of an offence of gang rape. From the evidence on record it is clearly evident that PW 4 was a consenting party. The learned counsel for the appellants contended that the prosecutrix, PW 4 was stayed more than 15 days with the appellant and during those period she did not make any whisper to any one about the commission of such offence by the appellants to her where she had all available opportunity to disclose the same. 13. Mr. The learned counsel for the appellants contended that the prosecutrix, PW 4 was stayed more than 15 days with the appellant and during those period she did not make any whisper to any one about the commission of such offence by the appellants to her where she had all available opportunity to disclose the same. 13. Mr. Bhowmik also contended that there was inordinate and unexplained delay of 16 days, i.e FIR lodged on 5.3.97 when date of occurrence was on 16.2.97 in lodging FIR and the same posed a serious doubt in the case of the prosecution and on the ground of delay alone, the prosecution case is liable to be disbelieved and the appellants are entitled to acquittal. But we are not inclined to accept the said submission made on behalf of the appellants. On perusal of the records we have found that the trial Court has already dealt with the question of delay and a observed that there was no delay practically in lodging the FIR finding that the informant, the PW 1, the helpless widow mother, searched for the prosecutrix for several days and did not find her and ultimately lodged FIR immediately in the moment when PW 4, her daughter, was traced out. Accordingly, we accept the finding of the learned trial Court that there was no delay in filing the FIR. 14. In a recent case reported in (2001) 6 SCC 71 (State of HP vs. Gian Chand) the Apex Court, dealing with a case under sections 375 and 376 IPC, declared that if the delay is properly explained to the satisfaction of the Court, such delay cannot be a ground for rejecting the entire prosecution case. In para 12 of the said decision, their Lordships held as follows: "Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court on its guard to search if any explanation has been offered for the delay and if offered, whether it is satisfactory or not If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case." 15. It is admitted position that the PW 4 has stayed with the appellant Sushanta for more than 15 days in different places. During those period she got number of occasions to complain against the appellants to PW 8 Shri Jogesh Patari and PAW 9 Shri Shillong Mog or their family members, but she did not do the same nor did e she tell to any person in the Hotel where they stayed. 16. PW 9, Shri Shillong Mog in his evidence has clearly said that on request of Haradhan he allowed the appellant Sushanta and PW 4 to stay in his house with a condition that they were to pay Rs 61 for staying in his house. In the said house Shri Shillong Mog had his wife and children. In his cross examination he has said that he had no talk with the woman nor the PW 4 had any talk with his wife. 17. PW 8, Shri Jogesh Patari in his deposition stated that the appellant and the PW 4 has stayed in his rented room for 13/14 days and in the meantime he came to know from the local people that the appellant Sushanta, being a married man and having child, enticed away the PW 4 with whom he was residing in his house. He further stated that he was annoyed after hearing the same and asked the appellant Sushanta to vacate the house. In his cross examination the PW 8 candidly adduced that he found the young girl PW 4 was living with Sushanta, wearing vermilion and conch and she never complaint to him anything against Sushanta. It is adduced that in his house, his wife, daughter and his sons wife also residing. She also did not make any complaint to the members of his family and when Sushanta used to go to the tailoring shop, the woman, PW 4 was residing alone. 18. From proper appreciation of the evidence of PW 4 and other two vital witnesses, i.e PW 8, Shri Jogesh Patari and PW 9, Shri Shillong Mog, it clearly goes to show that the prosecution failed to prove the offence of gang rape beyond reasonable doubt. 18. From proper appreciation of the evidence of PW 4 and other two vital witnesses, i.e PW 8, Shri Jogesh Patari and PW 9, Shri Shillong Mog, it clearly goes to show that the prosecution failed to prove the offence of gang rape beyond reasonable doubt. PW 4, the victim girl, in her entire deposition nowhere complaint to anybody about such commission of offence to her by the appellants. She was with the appellant Sushanta for 15/16 days on being taken from one place to another place and during these period she had enough scope and chances to disclose about her plight to any person. While she was in the house of PW 9, Shri Shillong Mog and PW 8, Shri Jogesh Patari, she did not tell any one to the family members of those witnesses when it is evident from the record that those witnesses were having their wives and children in their houses and PW 4 had various occasions to live alone, in absence of the appellants, to mix up freely with those family members. From her own evidence it also transpires that she did never resist the intercourse with the appellant Sushanta and Haradhan which would amount to a consent on her part. It was also deposed by her in her cross examination that the appellant Sushanta was known to her prior to the occurrence. He visited her house some times and also wrote letters. She further stated that Sushanta called her after c coming inside 'mela' and she did not shout or cry when Sushanta pointed dagger to her. The entire conduct on the part of PW 4 reflects that she was a consenting party to the entire episode. Further, the medical evidence, as already discussed above, also lings credence to the fact that the posecutrix was a consenting party and the appellants had not committed forcible sexual inter course with her. 19. The story of participation of Haradhan, the other appellant, in the alleged rape, as adduced by PW 4, also seems to be doubtful and unbelievable. How can it be possible on her part of being raped by Haradhan at the initial stage of her abduction by Sushanta to move freely with both of them when she was taken by them through different places. How can it be possible on her part of being raped by Haradhan at the initial stage of her abduction by Sushanta to move freely with both of them when she was taken by them through different places. It is also really surprising, as it appears from her own evidence that she never disclosed to Sushanta with whom she stayed for 15/16 days about her forcible rape by Haradhan who, according to prosecutrix, raped her twice. Firstly, when she initially went with Sushanta from Mela on being asked to follow her at dagger point, Haradhan joint Sushanta and after talk with him as Sushanta went a little away, Haradhan committed rape on her and again for second time he forcibly raped on her in the house of Shillong Mog, PW 9 during the absence of Sushanta, that also for a considerable time, according to the prosecutrix. But it would have been accepted as quite natural if she would have mentioned about such forcible rape on her by Haradhan to Sushanta. The story narrated by the prosecutrix clearly depicts that she did not put any resistance to such action rather she enjoyed such coitus. 20. Since there is no resistance on her part as revealed from the above discussion, against the so called commission of offence either by Sushanta or Haradhan on her, the evidence of doctor to the effect that no injury was found on her body or private part, rightly corroborated to the facts as emerged from the evidence on records. 21. The settled proposition of law is that the consent under compulsion is always to be judged on careful scrutiny and consideration of the evidence of the victim and from other corroborative evidence available and the attendant circumstances preceding, accompanying and following the acts of sexual inter course. From the attending circumstances as well as from the meticulous scrutiny of the evidence of the victim and other witnesses in the case in hand, it can be safely held that the absence of any violence or injury on the person of the prosecutrix shows that she did not put up any resistance on the alleged rape committed by the appellants and thus no irresistible inference would be drawn that she was not a consenting party which was also reinforced by the other witnesses as stated above. The evidence as a whole indicates that there was no resistance by PW 4 and there was voluntary participation by her in the sexual act. 22. Mr. D. Sarkar, learned PP vehemently argued that the PW 4 being illiterate village young girl of 16 years was lured by the appellants and thereafter she was abducted by them and subjected to gang rape and their conviction in terms of the impugned judgment requires to be upheld. He stated that the PW 4, the victim girl was only of 16 years of age and considering of her age she cannot be a consenting party in the inter course. 22A. It is seen that PW 4 in her statement under section 164 Cr PC stated that her age was 16 years. PW 13 the Doctor while examining the victim girl, PW 4 also recorded her age as 16 years and he clearly stated that the said age of 16 years has been mentioned only as per her own statement for which he advised " the Investigating Officer to ascertain her age by examination by a Radiologist. For the reasons best known to the Investigating Officer, Ossification Test had never been done to her. Therefore, the age of PW 4 could not be proved medically. 23. Defining rape section 375 IPC provides as under : "375. Rape-A man is said to be commit 'rape' who, except in the case herein after excepted, has sexual intercourse with a woman under circumstances falling under any of the six following description: First- Against her will Secondly-Without her consent Thirdly- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly-With her consent, when the man known that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly-With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly-With or without her consent when she is under sixteen years of age. Sixthly-With or without her consent when she is under sixteen years of age. Explanation-Penetration is sufficient to constitute the sexual intercourse necessary to the defense of rape. Exception-Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape." 24. From bare perusal of the above definition particularly clause' sixthly' it clears and expressly mandates that once the woman is under 16 years of age, her consent is irrelevant, if she is subjected to sexual intercourse and any person having sexual intercourse with such woman under 16 years of age shall be said to commit rape on her. In the instant case though the age of the prosecutrix could a not be ascertained medically, the same may be accepted as 16 years of age taking into consideration her statement As such since she was not below 16 years of age, her consent in such sexual intercourse is relevant from the facts situation as narrated above and it may be well presumed that she was a consenting party. 25. Be it mentioned herein that before raising the present age limit to 16 years under section 375 IPC, originally the age of consent was fixed at 10 years. Such age limit was raised from 10 to 12 years by Indian Criminal Law Amendment Act (X of 1891). Thereafter, it was again raised from 12 to 14 years by Indian Penal Code (Amendment) Act (XXIX of 1925) and ultimately the age limit has been raised to 16 years by the Act XLII of 1949. The Legislature in its wisdom has raised the age limit considering the back ground of the age of the puberty attained by the girl in India and also her fitness for sexual cohabitation till they are older and more developed in physique and strength and accordingly, the age limit of the female children has been raised to protect themselves (a) from premature cohabitation, and (b) from immature prostitution. In that view of the matter, it is the legislative intent that once a woman attains the age of 16 years, she becomes matured to give consent to the act of sexual intercourse. 26. In that view of the matter, it is the legislative intent that once a woman attains the age of 16 years, she becomes matured to give consent to the act of sexual intercourse. 26. Both from the statements of PW 4, the prosecutrix under section 164 CrPC as well as medical evidence which relied on only the statement of PW 4, show that the age of PW 4 was 16 years and not below 16 years. Since the prosecutrix was aged not below 16 years, the question of 'with or without her consent' as envisaged in clause 'sixthly' under section 375 IPC does not come. When the PW 4, accepted as a grown up girl on being attained 16 years of age, was alleged to have been raped by the appellants, it can be held that the complete absence of any violence or injury on her body or private part and repeated intercourse on several times during her stay with the appellant Sushanta for 157 16 days would show that she was consenting party. As per PW 4's own statement she and the appellant Sushanta both were known to each other and it was probably that on those days of their living as husband and wife, she must have consented to sexual intercourse with the appellant. 27. That being the position, we are not in agreement with the finding of the learned Additional Sessions Judge that the appellants are liable for the offence of gang rape under section 376 (2) (g) BPC. Accordingly, both the appellants are hereby acquitted from their respective convictions and sentences imposed by the impugned judgment. 28. As regards the conviction for the offence of abduction under section 366A, IPC of the appellant Sushanta, on perusal of the evidence we find that the prosecution has proved the same. The evidence of PW 4, the prosecutrix is unambiguous and clear to show that she was abducted by the appellant Sushanta. The said evidence of the prosecutrix was also fully corroborated by the statement of the appellant Sushanta recorded under section 313 CrPC, wherein the appellant has categorically admitted that he had taken away the prosecutrix from the 'Surjya Mela', but with a denial that she was taken away forcibly. The appellant Sushanta a also stated that the prosecutrix accompanied him though he told her that he had his wife and son. The appellant Sushanta a also stated that the prosecutrix accompanied him though he told her that he had his wife and son. Therefore, it appears from the record, though not proved, that the prosecutrix was only 16 years old, i.e below 18 years. She was induced by the appellant Sushanta by any means to go with him. 29. In view of the said fact situation and corroborative evidences, we are , of the firm view that the appellant had induced the prosecutrix who was under the age of 18 years to go with him and as such he committed an offence of abduction under section 366A IPC. Accordingly we do not find any reason to interfere with the findings of the learned trial Judge in this regard and without any hesitation we uphold the conviction of the appellant under section 366 A IPC. 30. At this stage, Mr. AC Bhowmik, learned counsel appearing for the appellants submitted that the appellant Sushanta is having his ailing parents and wife with a minor child. He being the only bread earner and in jail custody since the conviction, there is none to look after mem and they are in a utter stage of penury and this Court may be pleased to reduce his sentence by considering the said facts and circumstances. 31. Having given our thoughtful consideration to the submission of the learned counsel for the appellants, we are of the view that since the appellant Sushanta was sentenced under section 3 66A IPC to suffer RI for 7 years and to pay a fine of Rs 3,000 by the trial Court and he has been in jail immediately after conviction from 25.8.98 i.e more than 3 years, the interest of justice would be met if the sentence is modified to the period undergone. 32. For the foregoing reasons, discussions and observation, Criminal Appeal (J) No. 59/1998 preferred by the appellant Sushanta is hereby partly allowed with modification that the appellant is sentenced for the period undergone. The appellant Sushanta @ Tutan Chakraborty @ Bhattacharjee shall be set at liberty forthwith. 33. Criminal Appeal (J) No. 47 of 1998 preferred by the appellant Haradhan Paul is hereby allowed acquitting him from the charge of offence under section 376 (2) (g) IPC. Since the appellant is on bail, his surety is hereby discharged.