JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. A.S. Choudhury, learned senior counsel assisted by Mr. R. Ali, learned Counsel representing the Appellant No. 1 as well as Mr. A.K. Purkayastha, learned Counsel appearing on behalf of Appellant No. 2 and Mr. K.A. Mazumdar, learned Public Prosecutor, Assam. 2. This criminal appeal is directed against the Judgment and Order dated 26.7.2000 passed by the learned Assistant Sessions Judge, No. 1, Kamrup, Guwahati in Sessions Case No. 109 (K) of 1996 whereby both the appellants Nos. 1 and 2, Md. Tafiz Ali and Ibrahim Ali respectively were convicted under Sections 366(A)/34 IPC and 448 IPC and accordingly sentenced to undergo rigorous imprisonment for 7 years and also to pay fine of Rs. 300/- respectively and in default further rigorous imprisonment for 1 month each. The Appellant No. 1, Tafiz Ali was also found guilty of offence of rape committed upon PW 2 and accordingly he was convicted under Section 376 and also sentenced to undergo rigorous imprisonment for 7 years. Both the sentence inflicted upon the Appellant No. 1 should run concurrently. 3. The prosecution case in brief is that an FIR was lodged with Garoimari Police Outpost by P.W. 1 on 13.5.95 alleging that on 4.3.95 at about 7.00/8.00 P.M. when P.W. 1's minor daughter, P.W. 2 aged about 13/14 years was missing from house, although he lodged information in the police outpost at Garoimari at 5.3.95, later on he came to know from reliable source that on very same day the accused, namely, Md. Tafiz Ali enticed his minor daughter aged about 13/14 and eloped with her and accordingly his daughter was concealed somewhere. It was also alleged in the FIR itself the involvement of other persons, namely, (1) Md. Johuruddin, (2) Mafiz Ali and (3) Nayan Ali. 4. On the basis of an FIR lodged on 13.5.1995 by the father of P.W.2, Iman Ali with the concerned police station, police registered a case being Chaygaon P.S. Case No. 35 of 1995 under Sections 366(A)/34 IPC and started investigation. On completion of investigation the police found that the Appellant No. 1 was also involved in the offence under Section 376 IPC and accordingly charge-sheet was filed against both the appellants under Sections 366(A)/376 IPC. 5. On completion of investigation the police found that the Appellant No. 1 was also involved in the offence under Section 376 IPC and accordingly charge-sheet was filed against both the appellants under Sections 366(A)/376 IPC. 5. During the trial of the case before the learned Sessions Judge, Kamrup to whom the case being exclusively triable by the him was committed, the prosecution examined as many as 10 witnesses including the victim girl as P.W. 2, the Doctor who examined the victim girl as PW 5 and Investigating Officers, namely, Sri Prabhat Ch. Saikia and Sri Mahananda Konwar were introduced as P.W. 9 and P.W. 10 respectively. 6. Both the appellants were examined under Section 313 Cr. P.C. wherein they totally denied their involvement in the offence alleged and pleaded not guilty. 7. On comprehensive appreciation of the materials evidence on record both the oral and documentary and also upon hearing learned Counsel for the parties, the learned Sessions Judge convicted and sentenced both the appellants as already indicated above. 8. Having meticulously scrutinised the entire evidence on record, particularly, the testimony of the victim girl, P.W. 2 and the Doctor, P.W. 5, Dr. P.C. Sarmah and also upon hearing learned Counsel representing the parties, it appears that P.W. 5, the Doctor in his medical evidence stated that he did not find any sign of injury on the body or the private part of P.W. 2. Doctor in his evidence opined that on the basis of physical examination from the radiography and laboratory investigation of the victim girl, according to him, the age of the girl was above 14 and below 16 years and evidenced that presence of sexual intercourse was not found. He testified his opinion by saying that the victim girl was habituated to sex. In cross, the doctor stated that girl was examined on 27.3.95 at 11.00 A.M. and supported the report filed on 8.4.95. 9. On the other hand, the victim girl in her examination-in-chief as introduced by the prosecution as P.W. 2, stated that on the date of occurrence i.e., on 4.3.95 when her parents were not present at home and while she was cooking meal at about 7.00/8.00 P.M. both the appellants entered into their kitchen and appellant No. 1 gagged her while appellant No. 2 held her legs and both of them lifted her and took her to Banglapara. When she shouted they threatened her to cut. Thereafter, she stopped shouting out of fear. The appellant No. 2 returned from Banglapara and where from appellant No. 1 took her away forcibly. Appellant No. 1 kept her at the house of a family in the village and although she wanted to come back, she found herself in confinement in the house. In the confinement she shifted from village to village and during that period the appellant No. 1 had sexual intercourse with her for about 4 to 5 times. She was detained for about 15/16 days. One day, while they were moving through a village, the villagers appeared there and handed them over to the Sonatuli Police Station. Later on her father came there with policemen from Garoimari police station and therefrom she was taken to Chaygaon police station and thereafter she was produced before the Magistrate. She was also medically examined thereafter. On cross she reiterated her statement made in examination-in-chief stating that though she was held tight with a cloth by appellant No. 1 and her legs were held by appellant No. 2, she could not shout. The appellant No. 2 returned from Banglapara wherefrom the appellant No. 1 took her. The appellant No. 1 did not allow her to return in spite of her willingness to go home. She spent about 20 days in such manner by staying with the accused. 10. It appears that medical evidence of P.W. 5 totally dislodged the case of rape on the victim girl, P.W. 2. The victim girl, as per medical evidence, was habituated to sex and the doctor opined that there was no injury on her body and private part. In view of evidence of P.W. 2, the victim girl as well as medical evidence, this Court is of the view that the appellant No. 1 cannot be implicated in the commission of the offence of rape, as it appeal's that by staying for about 20 days with the accused, she became a consenting party to such an act. It is to be noticed that there was no evidence to indicate that at any point of time during her entire confinement she raised any protest or resisted the act of criminal sex abuse on her by the appellant No. 1 by any means. Even P.W. 2 was found, according to medical evidence, to be habituated to sex. 11. It is to be noticed that there was no evidence to indicate that at any point of time during her entire confinement she raised any protest or resisted the act of criminal sex abuse on her by the appellant No. 1 by any means. Even P.W. 2 was found, according to medical evidence, to be habituated to sex. 11. At this stage, the learned Counsel appearing for appellants has referred to a judicial decision rendered by this Court in a case of State of Tripura vs. Chayan @ Santosh Saha and submitted that facts and circumstances of the case referred to above is exactly similar to the instant case whereby the acquittal order passed by the learned trial Court was affirmed by the High Court observing that victim girl who was forcibly confined for several days did not complain to anybody against her forcible confinement and rape though she got several opportunity for doing so. In consideration of the facts and circumstances of the case at hand and having regard to Chayan's case (supra) this Court is of the firm opinion that the prosecution failed to establish the offence of rape and kidnapping against the appellant No. 1 beyond reasonable doubt. 12. Coming to the conviction of appellant No. 2 under Section 366(A) and his resultant sentence, it appears that his participation in the act of alleged kidnap only to the extent of taking out the girl from her house. Be it pertinent to note herein that victim girl was not lifted from a solitary place but from a house within a village and though she got enough opportunity, according to her own statement, she did not shout out of fear and in the process she stayed with the victim for about 20 days. That being the position, the appellant No. 2 is entitled to get the benefit of doubt. 13. Having considered the facts and circumstances of the case in its entirety and upon hearing learned Counsel for the parties, this Court is of the view that conviction and sentence against both the appellants cannot be sustained on the basis of present set of evidence so introduced by the prosecution. 14. Accordingly, the conviction and sentence of the appellants are hereby set aside and quashed. At this stage, it is stated that appellant No. 2 is already on bail. Accordingly his bail bond stands discharged. 14. Accordingly, the conviction and sentence of the appellants are hereby set aside and quashed. At this stage, it is stated that appellant No. 2 is already on bail. Accordingly his bail bond stands discharged. The appellant No. 1, who is in jail shall be set at liberty forthwith, if he is not wanted in any other case. In the result the appeal succeeds and stands allowed. Send down the LCR immediately. Appeal allowed.