JUDGMENT Anima Hazarika, J. 1. Aggrieved by the judgment and order of conviction dated 27.2.98 passed by the learned Assistant Sessions Judge, Darrang at Mangaldoi in Sessions Case No. 4 (D.N. 1) of 1997, the accused-Appellant Shri Ikbal Hussain Saharia @ Iqbal Rahman has filed this appeal under Section 374(2) of the Code of Criminal Procedure ("CrPC" for short). By the impugned judgment and order of conviction, the accused-Appellant has been convicted under Sections 366 / 376 / 34 of the Indian Penal Code ('IPC for short) and sentenced to rigorous imprisonment ('RI' for short) for 5 (five) years and to pay a fine of Rs. 5,000/- in default further RI for 3 months under Section 366 read with Section 34 of the IPC and RI for 10 years and to pay a fine of Rs. 5,000/- with a defaulting clause of RI for 3 months under Section 376 read with Section 34 of the IPC. It is ordered by the impugned judgment that both the sentences of imprisonment would run concurrently. 2. The prosecution case as unfolded in the Ejahar (FIR) dated 3.3.93 (Ext. 1) is that on 7.2.93 when the informant's minor daughter, aged about 14 years, (to be referred to hereinafter as 'victim girl'), went for marketing, the three accused persons, namely, (i) Md. Iqbal Rahman, (ii) Md. Nazir Ali and (iii) Md. Mazidur Rahman Saharia abducted her and kept her confined in their house. On receipt of the said Ejahar, Police registered Mangaldoi P.S. Case No. 37/93 under Sections 366 / 34 IPC and investigated into the matter. The victim girl was recovered by the police on 4.3.93 from wrongful confinement of the accused persons at village Samuapara and got her examined by the Doctor at Gauhati Medical College and Hospital ('GMCH' for short) on 4.3.93 itself and thereafter, she was forwarded to the Court for recording her statements under Section 164 Code of Criminal Procedure. Accordingly, the statements of the victim was recorded under Section 164 Code of Criminal Procedure by the learned Judicial Magistrate. During investigation. Police arrested one of the accused viz. Ikbal Hussain Saharia @ Iqbal Rahman, i.e. the present Appellant on 4.3.93. On completion of the investigation, police submitted charge-sheet against the two persons, namely, Ikbal Hussain Saharia (the present Appellant) and Nazir Ali, showing the later as absconder in the charge-sheet. During investigation. Police arrested one of the accused viz. Ikbal Hussain Saharia @ Iqbal Rahman, i.e. the present Appellant on 4.3.93. On completion of the investigation, police submitted charge-sheet against the two persons, namely, Ikbal Hussain Saharia (the present Appellant) and Nazir Ali, showing the later as absconder in the charge-sheet. Since the offence was exclusively triable by the Court of Sessions, the concerned Magistrate committed the G.R. Case No. 136/93 arising out of Mangaldoi P.S. Case No. 37/93 to the Court of learned Sessions Judge, Darrang at Mangaldoi on 19.12.96. Subsequently the case was transferred to the file of the learned Assistant Sessions Judge, Mangaldoi by the learned Sessions Judge, Mangaldoi for trial and disposal. The case against Nazir Ali was filed by the committing Magistrate on 2.8.96 after proof of the service of proclamation and attachment order. 3. The learned trial Court framed charge with two heads, i.e. under Sections 366 / 34 IPC and 376 /34 IPC against the accused-Appellant. The charges being read over and explained to the accused he pleaded not guilty and claimed to be tried. 4. During trial prosecution examined as many as six witnesses including the Doctor and Investigating Officer while defence examined two witnesses and took the plea of total denial. 5. I have heard Mr. B.K. Ghosh, learned senior Counsel assisted by Mr. N. Chakraborty, Advocate appearing for the accused-Appellant. Also heard Mr. D. Das, learned Additional Public Prosecutor, Assam. The learned senior Counsel for Appellant, besides his verbal submissions, has filed written argument. 6. It has been strenuously argued by the learned senior Counsel for the accused-Appellant that the prosecution has miserably failed to prove its case and hence, the impugned conviction and sentence are liable to be set aside. He further submits that there are material contradictions in the depositions of P.Ws. 1, 2, 3 and 4 for which none of the said prosecution witnesses can be relied upon for the purpose of conviction of the accused-Appellant under Sections 366 / 376 / 34 IPC. It is submitted that the Ejahar (vide Ext. 1) was lodged with the police station with a delay of 23 days without, however, rendering any explanation as to the cause of such delay in such a serious offence. It is submitted that the Ejahar (vide Ext. 1) was lodged with the police station with a delay of 23 days without, however, rendering any explanation as to the cause of such delay in such a serious offence. On the other hand, from the evidence of the victim (P.W. 1), it appears that she was allegedly taken by the accused-Appellant along with Nazir Ali from place to place viz. Guwahati, Shillong, Chariali, Muktapur by bus for which she had to move through various public places. At no point of time, she raised any hue and cry, nor she protested or resisted in any manner. From such conduct of the victim, it is submitted by the learned Counsel appearing for the accused-Appellant, the only conclusion that may be arrived at by the Court is that she eloped with the accused Nazir Ali willingly, inasmuch as, on the date of occurrence she was a major girl, aged about 18 years as per the evidence of the Doctor (P.W. 5). The learned Counsel for the accused-Appellant, referring to the defence evidence, submits that P.W. 1 has mentioned her age as 21 years while executing the Ext. 'Ka' document and in that view of the matter the victim under no stretch of imagination can be held to be minor at the time of alleged occurrence. Prosecution has not exhibited any certificate to proof the age of the victim girl, be it school certificate or birth certificate. On the other hand, the doctor P.W. 5 has found the age of the girl to be above 18 years on the basis of physical examination, dental findings and radiological examination, which is authentic and is to be accepted in the facts and circumstances of the case. 7. While making rival contentions, the learned Addl. P.P. submits that the prosecution has proved its case beyond reasonable doubt and hence, there is nothing to interfere with the conviction and sentence passed by the learned trial Court. He further submits that the evidence of the victim girl is enough to maintain conviction in a case of such nature, provided, of course, her evidence must inspire confidence of the Court. In the instant case, submitted the learned Addl. P.P. that there is nothing to show on record that the victim or her family had any animosity with the accused-Appellant for which they had falsely implicated him in the case. In the instant case, submitted the learned Addl. P.P. that there is nothing to show on record that the victim or her family had any animosity with the accused-Appellant for which they had falsely implicated him in the case. As such according to the learned Addl. P.P., the appeal has no merit and is liable to be dismissed. 8. In view of the rival submissions advanced by the learned Counsel appearing for the parties, let us go through the evidence on record to ascertain as to whether the deposition of witnesses made out a case against the Appellant for conviction under the aforesaid sections of law. 9. The victim girl has been examined as P.W. 1 who in her deposition stated that at about 10 AM, on the day of occurrence, she left for Mangaldoi for marketing and the accused, whom she did not know earlier, made her board on a taxi under threat and she was taken to Guwahati. From Guwahati she was taken to Shillong by a 'Canter' bus where she met another unknown man. In Shillong, she was kept in a house of Khasi man where both the accused persons including the present accused-Appellant committed rape on her. Thereafter she was brought to Chariali Muktapur by bus and was kept in a house of a Muslim person for one night. There they kept her with the daughter of the Muslim person. Then the accused persons took her to Samuapara and kept her in a house of another Muslim person whose name was not known to her. At Samuapara, she was kept for 10 days and both the accused persons committed rape on her every night. The other accused persons also assaulted her when she tried to go home. Her father, with the help of police, rescued her from Samuapara, but the accused persons fled away. Thereafter, she was medically examined at Mangaldoi Civil Hospital and her statements were recorded by a Magistrate at Mangaldoi Court. She was also brought to GMCH for Medical examination P.W. 1 has been cross-examined by the defence at length. During her cross-examination, P.W. 1 has stated that the accused took her away from the entry road to Mangaldoi vegetable market. Both the accused met her there. There were 20/25 shops at the place from where she was taken away by the accused persons. There were people in those shops. During her cross-examination, P.W. 1 has stated that the accused took her away from the entry road to Mangaldoi vegetable market. Both the accused met her there. There were 20/25 shops at the place from where she was taken away by the accused persons. There were people in those shops. That place is half a mile away from Karim Chowk. Prior to her reaching the road to the vegetable market she had not met the accused persons anywhere. She told the police that while coming from home to Mangaldoi to do market she had met Md. Nazir Ali at around 10 a.m. He told her that accused-Appellant would be at the ASTC bus stand and that she should go there and then she went with him to the ASTC stand at Mangaldoi. She met the accused-Appellant at the ASTC station for the first time. Mangaldoi ASTC bus station is almost 1 km away from Karim Chowk. From Karim Chowk Md. Nazir Ali and herself walked through the town to the ASTC bus stand. When she asked Nazir Ali where she was being taken, Nazir Ali answered that he would go that far only. However, she has stated that Nazir Ali did not take her by force. But he took her away under threat. She did not meet any familiar man to tell that she was threatened. However, on the way, she met some persons but she did not tell them about threatening by Nazir Ali. She has also categorically stated that she did not try to save herself by entering into roadside shop. From the ASTC bus station, the accused took her to Baihata Chariali by bus and from Baihata Chariali she was taken to Muktapur where they kept her in the house of a man. She has also stated that she told the police that from Guwahati the accused-Appellant had gone home to bring money. At Guwahati, the accused Nazir Ali beaten her up and kept her at his maternal uncle's home for about 10 days. She has further stated that before the Magistrate she deposed that while taking her from Muktapur to Shillong the accused persons had kept her in the house of a relative at Rani for one night. In that house at Rani, there were an elderly couple and three girls. She spent the night with the three girls. She has further stated that before the Magistrate she deposed that while taking her from Muktapur to Shillong the accused persons had kept her in the house of a relative at Rani for one night. In that house at Rani, there were an elderly couple and three girls. She spent the night with the three girls. But she did not tell them that the accused persons had brought her by force. She has stated that she did not know either accused Nazir or the accused-Appellant from before. She also did not know to which place thay belong. She denied the suggestion that on 20.2.93 she executed an agreement for marriage with the accused Nazir. P.W. 2, Smti Topa Nath is the maternal aunt of the victim. She has deposed that the father of the victim runs a tea and paan shop at Teliapara Chowk, Mangaldoi. He sent his daughter, i.e. the victim girl to Mangaldoi Town on the day of occurrence to buy bidi, cigarette, etc. for the shop and at that time someone kidnapped her (P.W. 1). It has been stated by P.W. 2 that for three days they looked for the victim thinking that she might have been in her friend's house, but when they could not find her out, the father of the victim girl lodged Ejahar with Mangaldoi Police Station along with a photograph of the victim girl. Subsequently after about 22 days, her brother-in-law, i.e. the father of the victim girl was informed by somebody that the victim girl was staying in a house of a man at Samuapara. Accordingly, they rescued the victim girl from that place with the help of police. It has been further deposed by P.W. 2 that P.W. 1 on being rescued reported to her (P.W. 2) that she (P.W. 1) was sold in Shillong and the accused persons confined her in a closed room apart from raping her. The P.W. 2 deposed that the victim girl told her that accused Ikbal and Nazir had kidnapped and raped her. This P.W. 2 accompanied the victim girl to GMCH for her medical examination. During cross-examination, nothing significant could be brought out from her mouth by the defence. She only stated that she came to know from the father of the victim girl that she stayed in the house of Nazir. This P.W. 2 accompanied the victim girl to GMCH for her medical examination. During cross-examination, nothing significant could be brought out from her mouth by the defence. She only stated that she came to know from the father of the victim girl that she stayed in the house of Nazir. P.W. 3, Smti Rukmini Nath is another maternal aunt of the victim girl. She also deposed in the same tune as that of P.W. 2. In answer to a question made by the learned trial Court, P.W. 3 stated that the victim girl was aged about 12/13 years at the time of being kidnapped/abducted. However, during cross-examination, she admitted that the victim could be more than 12/13 years of age as she does not know her date of birth. P.W. 4, Shri Seupujan Prasad, who lodged the Ejahar (Ext. 1), is the father of the victim girl. He deposed that around 10/10.30 A.M., one day 3 1/2 years ago he sent the victim girl (P.W. 1) to the market at Mangaldoi Town to buy some articles for his shop but she did not return. He searched for his daughter for 2 days thinking that she might have gone to a relative's house. Having failed to trace her out, he lodged the Ejahar vide Ext. 1 with the Mangaldoi Police Station. Ext. 1(1) is his signature. He further deposed that after about five days he was informed by a man that his daughter and Ikbal (the accused-Appellant) were seen going towards Jonaram Chowk. Being accompanied by a couple of men, he went there but could not find her (P.W. 1) out. Three days thereafter, another man informed him that his daughter was seen in a man's house and she was confined in a small room. Accordingly, on the next day he went alone to Samuapara and found P.W. 1 under confinement in a small room. Then he came to Mangaldoi Police Station and lodged the Ejahar on 3.3.99 where after police recovered his daughter. He stated that besides P.Ws. 2 and 3, he himself went with the Police to the house at Samuapara wherefrom his victim daughter was recovered. However, he did not know the name of the owner of that house. He deposed that later on his daughter told him that she was taken to four or five places including Shillong and Guwahati by the accused persons. 2 and 3, he himself went with the Police to the house at Samuapara wherefrom his victim daughter was recovered. However, he did not know the name of the owner of that house. He deposed that later on his daughter told him that she was taken to four or five places including Shillong and Guwahati by the accused persons. He also deposed that the victim did not tell him as to what the abductors had done with her, nor did he ask anything about that. According to P.W. 4, the victim girl was aged about 14 years of age at the time of occurrence and though there is a horoscope of the victim, he did not produce the same before the Police. He denied the suggestion during cross-examination that he had not lodged the Ejahar with the police station two days after the occurrence and lodged the same after 23 days. P.W. 5 is the Doctor, who was posted as Demonstrator in the department of Forensic Medicine, GMCH and examined the victim girl on 4.3.93. Upon examination of the victim, P.W. 5 recorded his opinion vide Ext. 2. As per the opinion of the doctor, on the basis of the physical examination, dental findings, radiological examination, the age of the victim was found above 18 years. P.W. 5 further opined that there was no evidence of recent sexual intercourse and she was not carrying pregnancy. P.W. 6, Jitendra Kumar Singh was posted as Sub-Inspector of Police at Mangaldoi Police Station. After receipt of the Ejahar (Ext. 1) lodged on 3.3.93, the Officer-in-Charge ('O/C for short) registered a case and directed him to investigate into the case. He deposed that during investigation he visited the place of occurrence, recorded the statements of the witnesses and rescued the victim (P.W. 1) from the house of accused Md. Nazir Ali (absconder) at Samuapara. Thereafter, he got the victim girl medically examined at Mangaldoi Civil Hospital as well as at GMCH. He also got the statements of the victim recorded under Section 164 Code of Criminal Procedure by a Magistrate at Mangaldoi Court. P.W. 6 arrested the accused-Appellant and on completion of investigation, submitted the charge-sheet. During cross-examination, he stated that the informant is an inhabitant of Mangaldoi Town (Ward No. 7) and he lodged the Ejahar on 3.3.93 while the occurrence took place on 7.2.93. 10. P.W. 6 arrested the accused-Appellant and on completion of investigation, submitted the charge-sheet. During cross-examination, he stated that the informant is an inhabitant of Mangaldoi Town (Ward No. 7) and he lodged the Ejahar on 3.3.93 while the occurrence took place on 7.2.93. 10. The defence examined two D.Ws., namely, Mahboob Ali (D.W. 1) and Shri Narayan Chakraborty, Advocate (D.W. 2). Both the D.Ws. have proved the document Ext. 'Ka' which is an affidavit declaring marriage between one girl (referred to be as 'P') (same name with that of the victim girl, but the title is different) and Md. Nazir Ali (absconded accused) dated 20.2.93, D.W. 2, who is an Advocate by profession, deposed that on 20.2.93, 'P' and Md. Nazir Ali came to him and told him that they wanted to many through registration out of their own and approval of their respective guardians. Accordingly, he drafted an affidavit and gave it to his cleric, i.e. D.W. 1, who prepared the Ext. 'Ka' (Affidavit). D.W. 1 stated that age of the girl was written in Ext. 'Ka' as 21 years as told by her. 11. On a careful scrutiny of the materials on record, it appears that the alleged occurrence took place on 7.2.93 while the Ejahar (Ext. 1) was lodged with the Police Station on 3.3.93, i.e. after 23 days. No explanation, whatsoever, had been rendered in the Ejahar as to the cause of such long delay in lodging the Ejahar. On the otherhand, from the prosecution evidence itself it spears that the alleged occurrence took place in the crowded market area with rows of shops on the both sides in broad day light at 10/10.30 a.m. when the victim came to market and thereafter, she was taken from place to place by the accused persons, i.e. the Appellant and the co-accused Md. Nazir Ali. Had the victim being a girl raised slightest protest against the activities of the accused persons, the people in the public place certainly would have come forward to rescue her. On the other hand, as per evidence of D.Ws. 1 and 2, she came to the Court at Mangaldoi on 20.2.93 for swearing the affidavit vide Ext. 'Ka'. Court premises are public place and not to speak of public, police personnel are always available on duty in Court premises. From the evidence of P.W. 5 as well as Ext. On the other hand, as per evidence of D.Ws. 1 and 2, she came to the Court at Mangaldoi on 20.2.93 for swearing the affidavit vide Ext. 'Ka'. Court premises are public place and not to speak of public, police personnel are always available on duty in Court premises. From the evidence of P.W. 5 as well as Ext. 'Ka' it is crystal clear that the victim P.W. 1 was a major girl at the relevant time. As per her evidence, she was taken from Mangaldoi to Guwahati. Then to Shillong and from Shillong to Rani and then to Muktapur. Thereafter, she was brought to Samuapara at Mangaldoi. However, she never protested, nor raised any alarm and told anybody that she had been abducted or forcefully taken away by the accused Appellants from the lawful custody of her guardian. While taken together all these factors, one can only reach to the conclusion that P.W. 1 was a consenting party and that she was not abducted. 12. Under such circumstances, I am constrained to hold that the evidence of P.W. 1 does not inspire confidence so as to sustain conviction of the accused-Appellant under Sections 366 / 34 IPC. 13. So far the conviction of the accused-Appellant under Section 376 IPC is concerned, the ingredients of Section 375 IPC is absolutely lacking in the instant case. First of all, P.W. 5, the doctor, found the age of the victim girl above 18 years. The P.W. 5 has not found any symptom of recent sexual intercourse. As per evidence of P.W. 1, she was forcibly raped by two persons including the accused-Appellant for several days. In case of forcible sexual intercourse, the doctor would have found marks of sexual violence, but the P.W. 5 has not found any such mark while examining the victim. From the facts and circumstances as well as from the depositions of the victim girl and the doctor, the fact of the accused persons committing rape by threatening the victim cannot be believed. If it is to be believed at all, then it may be taken as sexual intercourse indulged by her with the accused as a consenting party in the absence of threat or resistance offered by her. 14. If it is to be believed at all, then it may be taken as sexual intercourse indulged by her with the accused as a consenting party in the absence of threat or resistance offered by her. 14. In Ramnarayan Jha v. State of Assam reported in 1999 (1) GLT 54, this Court held that when the evidence of doctor cast a reasonable doubt as to whether the prosecutrix in fact was raped and in that case, it was held that the accused is entitled to the benefit of doubt. 15. In Moinul Haque and Ors. v. State of Assam reported in (2001) 1 GLR 516, this Court observed at para 16 as follows: It is true that a Court has to take seriously the cases relating to violence against women. Simultaneously, the Court has a duty to guard itself against false charges of rape. The narration of the prosecution case is full of vital omissions and contradictions and it raises a strong doubt which over-shadows the genesis of the prosecution case. In my opinion, it would be unsafe to sustain the conviction in this case relying upon the testimony of the prosecutrix alone. Dignity of women will have to be protected, but without the aid of emotion. This is undoubtedly not a case where the prosecutrix has the last 'say'. 16. That being the position, this Court is of the view that the material facts as pleaded and proved above, show that the prosecution story of occurrence of rape has not been proved beyond all reasonable doubt, more so, the essential ingredients of Section 375 IPC having being found absent, the learned trial Court ought not to have convicted the accused-Appellant under Section 376 IPC. 17. In the result, the appeal is allowed. The judgment of conviction and sentence is hereby set aside. The accused-Appellant is acquitted. 18. Since the accused is on bail granted by this Court, he is discharged from the bail bond. 19. Send down the lower Court record.